The Ministry of Environment, Forest and Climate Change (MoEF&CC) has issued a notification, giving a six-month window period to project proponents, who have been operating without obtaining a prior environmental clearance (EC), to apply for the same. The notification, issued on March 14, clarifies that this opportunity can only be availed for projects or activities which are observed to be in violation till the date of the notification, thus, making this a one-time opportunity.
The Ministry says that the notification has been issued because it is “necessary to bring such projects and activities in compliance with the environmental laws at the earliest point of time, rather than leaving them unregulated and unchecked, which will be more damaging to the environment”. Thus, it is “essential” to grant EC to these projects with adequate safeguards to make them compliant.
What prompted such move?
The recent move comes in response to certain proposals that the ministry and the State Environment Impact Assessment Authorities (SEIAA) have been receiving from project developers for issuing “Terms of References” (ToR) and EC for projects which have “started the work on site, expanded the production beyond the limit of environmental clearance or changed the product mix without obtaining prior environmental clearance”.
Moreover, a decision of the National Green Tribunal (NGT) in July 2015 has prompted the government to take such step. The NGT, at that time, had quashed two office memoranda (dated December 12, 2012 and June 27, 2013) of the Union Environment Ministry that had laid down a process for granting EC to such cases of violation. Many project developers have been exploiting that. The tribunal considered those office memoranda to be “ultra vires”, because the granting of “ex post facto” EC frustrates the need of a prior EC as required under the Environment Impact Assessment (EIA) Notification, 2006.
Conditions of the latest notification for EC requirement and compliance
The latest notification lists a set of conditions that must be fulfilled by project developers for obtaining EC and for compliance of EC conditions.
The specifications that have been given for obtaining ECs include:
- All applications of EC (for the violation cases), irrespective of their size and capacity, will only be appraised at the Central level by the respective sector-specific Expert Appraisal Committee (EAC).
- The EAC will first examine whether the project or activity is at all a permissible activity at the site on which it has come up. If not, then closure will be recommended.
- If the EAC considers the site to be agreeable, then the EAC will prescribe “specific ToR” for assessment of ecological damage; and developing remediation plan and Natural and Community Resource Augmentation Plan (NCRAP). This will be in addition to general ToR required under EIA Notification (2006) for EIA study or development of Environment Management Plan (EMP).
- The remediation plan and/or the NCRAP shall be prepared by accredited consultants and will be an independent chapter in the EIA report.
- The collection and analysis of data for assessment of ecological damage, preparation of remediation plan and NCRAP shall be done by an environmental laboratory duly notified under the Environment (Protection) Act (1986)—E(P)Act, or an environmental laboratory accredited by the National Accreditation Board for Testing and Calibration Laboratories or the Council of Scientific and Industrial Research (CSIR).
- The EAC shall stipulate the implementation of EMP, comprising remediation plan and NCRAP corresponding to the ecological damage assessed and economic benefit derived due to violation as a specific condition of EC.
Specifications to ensure compliance
Besides laying out conditions for obtaining EC, the notification also gives certain specifications in order to ensure compliance of EC conditions and implementation of the remediation plan and the NCRAP. The one that’s particularly important is with respect to furnishing of bank guarantee.
The project proponent will have “to submit a bank guarantee equivalent to the amount of remediation plan and NCRAP with the State Pollution Control Board (SPCB)”. According to Manoj Kumar Singh, joint secretary, MoEF&CC, the bank guarantee should compel the project developers to implement the remediation plan and the NCRAP in a timely manner, because by not doing so, the bank guarantee will be forfeited or its renewal every time will cost the developer considerable additional money.
The notification also clarifies that the SPCBs will be able to take action under Section 19 of the E(P) Act for violation. This essentially means that that SPCB can file a complaint report on violation of the project developers, on the basis of which they can be taken to court. The concerned SPCBs will also not issue any consent to operate or occupancy certificate till the project is granted EC by the Centre.
While ideally an EC should not be granted once project activities have started, by the virtue of the EIA Notification (2006), but if it is now allowed even through a limited window, the implementation of remedial measures and compliance of clearance conditions must be strictly monitored. Compliance is a major concern, given the already poor monitoring and compliance status of EC conditions.
A clear timeframe for implementation of the remediation and augmentation plans is crucial. Also, the government must ensure compliance by specifying monitoring intervals and detailed reporting on the same. In all cases of non-compliance or improper implementation of remedial plans, the project proponent must be held for serious offence and should be held liable for stiff penalty.