Environmental clearances

The BJP’s manifesto released during the 2014 general elections did mention about environmental governance, but with a twist. The plan for environmental management was largely talked about under the subject “industry”, instead of “flora, fauna and environment”.  There was a clear emphasis on framing of environmental laws in a way that aids speedy clearances and removal of bottlenecks and leaves no scope for confusion.

During its first year in the Centre, the government has started to roll out measures to live up to this philosophy steadily.

According to the available data, in the past eleven months (until April 2015), the Union Ministry of Environment and Forests and Climate Change (MoEF&CC) has given environmental clearances (EC), including new and expansion projects, to 187 development projects in major sector-,mining, thermal power, hydropower, iron and steel, cement, infrastructure and industrial estates.
 

• According to the available data, in the past eleven months (until April 2015), the Union Ministry of Environment and Forests and Climate Change (MoEF&CC) has given environmental clearances (EC) to 187 development projects, including new and expansion projects.
• Most of these clearances have been in the mining sector, particularly coal. The sector accounts for more than 55 per cent of the clearances. (See graph below: Environmental clearances granted to mining projects).
• Besides mining, many projects have been cleared in the sector of infrastructure and industrial projects (including those in coastal areas). A total of 66 projects, involving investments more than Rs 127,102 crore, have been cleared (The actual number is expected to be more as costs of some projects were not indicated).
• Meanwhile, clearance was also awarded to nine thermal power projects, with a cumulative production capacity of 5796 MW, one hydro power project with production capacity of 11 MW, three cement projects with total capacity of 10.5 MTPA, and five iron and steel projects with nearly 1.6 MTPA total capacity were cleared.

Coal gets a kick

With the pretext of economic and energy needs of the country, a special attention has been given to granting environmental clearances for the coal sector. Not only the number of clearances but also the easing of processes and diluting of restrictions for coal projects are a testimony to this focus on coal. For instance, provisions of public hearing, with respect to coal mining projects, have been significantly relaxed and more and more coal mining expansion projects have been exempted from the requirement of public hearing. Moreover, coal projects have also been allowed in critically-polluted coalfields, keeping in abeyance the moratorium on projects in these areas that was re-instated in September 2013.

• Among all the mining projects cleared by the MoEF&CC between June 2014 to April 2015, 37 coal mining projects with a cumulative production capacity of more than 96.5 MTPA were cleared.
• Many of the clearances, including expansion, involved projects in critically-polluted coalfields like those in Singrauli district of Madhya Pradesh, Dhanbad district of Jharkhand and the Raniganj coalfield in Burdwan district of West Bengal.
• Projects in the Raniganj coalfields of Burdwan district, primarily awarded to Eastern Coalfields Limited, were cleared as cluster.

In order to expedite coal production from the coal mines, whose allocation stood cancelled by Supreme Court’s order of September last year and are now being auctioned, the environment ministry has eased the transfer of clearances. 

A notification issued by MoEF&CC in March 2015 allowed transfer of ECs from those granted the previous coal mine allottees to new owners, without any additional approval.  

The easing of the clearance transfer process has been brought about by amending the Environmental Impact Assessment Notification (EIA), 2006. The EIA Notification, until now, required a no objection certificate to be obtained from the original holder of the EC and also from the concerned authority, when a particular project or activity changes hands.

The March notification specified that “where allocation of coal block is cancelled in any legal proceeding or by the government following regulatory provisions”, the EC pertaining to such coal block can be transferred to the new lease holder. Such transfer of clearance can happen without obtaining any “no objection” permit from the company that originally had the EC, or from the concerned regulatory authority. The clearance will also remain valid for the same period as it was originally given.

Side-lined interests of people

“Fast tracking” was the buzzword this season. Though various measures are under consideration for speedy dealing of clearances, diluting the requirements of public hearing for some sectors or project categories is one example of the “fast track” decisions.

“Public hearings” are mandated under the Environment Impact Assessment (EIA) Notification of 2006 in order to give the community an opportunity to express their concerns and opinion about a proposed development activity. However, in the recent years, the provision has been diluted systematically. The trend continued in the last year as well. The MoEF&CC issued three notifications referring to such exemptions. Though this initiated with the UPA government in 2012, the move by the new government came in quick successions. The justification for such exemption, as specified in the July 2014 office memorandum of MoEF&CC, is “to quickly ramp up coal production for enhancing power production in public interest”. The same reason—public interest—is reiterated in a September memorandum. The tree notifications were for:

• May 30, 2014: Coal mines with production capacity over eight MTPA and up to 16 MTPA, seeking one-time capacity expansion with production enhancement up to 4 MTPA.
• July 28, 2014: Coal mines with production capacity more than 16 MTPA, seeking one time capacity expansion with production enhancement up to 5 MTPA.
• September 2, 2014: Coal mines with production capacity more than 20 MTPA, seeking one time capacity expansion with production enhancement up to 6 MTPA.

Easing regulations

More projects to be cleared by states

On July 31, 2014, the then minister of state for MoEF&CC, Prakash Javadekar, in a written response to the Rajya Sabha, mentioned that the ministry is working towards streamlining environmental clearance (EC) process by “delegating more powers to the State level Environment Impact Assessment Authorities (SEIAAs). However, the capacity and accountability of the state level clearance authorities, the SEIAAs and the SEACs, is one of the major issues concerning environmental clearances at the state level. As far as projects cleared by the state authorities are concerned, there is no clarity about the monitoring authority, as this has not been specified under the EIA Notification 2006. What matters is though devolving power to state authorities over time is justified, this must only come after such state level institutions are strengthened and made accountable. Otherwise, this will only mean that projects will be cleared with less scrutiny and thereafter their operations will continue without proper fulfillment of conditions.

The process of delegating more power to the state to clear more projects has come through amending a “schedule” in the EIA Notification, 2006 and placing more projects under category B. According to the EIA Notification 2006, depending on the spatial extent and potential impacts of proposed development projects, they are broadly categorised into A and B. While all category A projects are appraised by a Central expert appraisal committee (EAC) of the Union environment ministry and cleared by the Union ministry, category B will be cleared by state authorities—SEIAAs, following appraisal by state EACs (SEAC).

The June 2014 EIA Notification amendment

The amendment involved the inclusion of certain project categories, earlier not specified under the 2006 Notification schedule, by placing them under category B. Revisions were also made in some of the existing sectors to categorise more types of projects as category B. Modifications were made in sectors such as thermal power, river valley, mining and other industrial sectors such as paper and pulp, distilleries and fertilisers. Some salient changes are as follows:

Thermal power plant: Two new fuel types used in thermal power plants - “biomass” and municipal solid non-hazardous waste”- were introduced to distinguish projects placed under category B. Following types of thermal power projects can be cleared by states:

• Projects greater than or equal to 50 megawatt (MW) but less than 500 MW capacity; using coal, lignite, naptha and gas based fuel.
• Projects greater than or equal to 5 MW, but less than 50 MW capacity, using all other fuels except biomass and municipal solid non-hazardous waste.
• Projects between 15-20 MW capacity, using municipal solid non-hazardous waste as fuel.
• Projects equal to or more than 15 MW capacity using biomass fuel

Moreover, the following were exempted: plants up to 15MW capacity, based on biomass or non hazardous municipal solid waste using auxiliary fuel such as coal, lignite/petroleum products up to 15 per cent; and, waste heat boilers without any auxiliary fuel.

Coal tar processing units: All projects to be cleared by the state authority.

Mineral beneficiation: Projects of less than 0.5 MTPA capacity will now be cleared by states. Earlier, state authorities were entitled to clear projects below 0.1 MTPA capacity. 

Irrigation projects and River valley projects: Addition of “irrigation projects” in the schedule to distinguish it from river valley projects

• Irrigation projects involving command area between 2,000 to10,000 ha are under category B. These are particularly medium irrigation projects. The amendment thus also has done away with clearances for projects below 2,000 ha, which are typically minor irrigation projects.  
• The 2006 notification had specified that all river valley projects under 10,000 of culturable command area are under category B, thus requiring a clearance by the state. The new amendments have clearly put the culturable command area under the “irrigation projects” category.

December 2014 EIA Notification amendment: It gave further clarifications for projects under category B

• Building and Construction projects: As per the 2006 Notification, building and construction projects equal to or greater than 20,000 square meters (sq m) but less than 150,000 sq m built up area are to be cleared by state authorities. The “built up” area was defined as follows: built up area for covered construction; in the case of facilities open to the sky, it will be the activity area.
• In December, it was modified to note “built up area” as “the built up or covered area on all floors put together, including its basement and other service areas, which are proposed in the building or construction projects”. As a corollary, it further clarified that “projects or activities shall not include industrial shed, school, college, hostel for educational institution, but such buildings shall ensure sustainable environmental management, solid and liquid waste management, rain water harvesting and may use recycled materials such as fly ash bricks”.
• Townships and area development projects: Projects remaining under category B, as in line with the 2006 Notification, included those covering an area greater than 50 ha and/or built up area greater than 150,000 sq m.

Allowing projects to come up in critically polluted areas

The MoEF&CC had imposed a moratorium till August 31, 2010 on consideration of projects for environmental clearance to be located in 43 critically polluted areas (CPA)/industrial clusters identified by the Central Pollution Control Board (CPCB). At that time, it was envisaged that during the period of moratorium, time bound action plans will be prepared by the respective State Pollution Control Boards (SPCB) or pollution control committees (PCC) for improving the environmental quality in these industrial clusters/areas. The action plans so prepared would be finalised by CPCB. However the moratorium was extended from time to time beyond the stipulated period.

Though many of the industrial areas showed improvement in the quality of environment between 2010 and 2013, when CPCB conducted monitoring in all the 43 CPAs between February and April, 2013, eight did not show any improvement. The eight areas including Ghaziabad (UP), Indore (MP), Jharsuguda (Orissa), Ludhiana (Punjab) , Panipat (Haryana) , Patancheru - Bollaram (AP.), Singraulli (UP and MP) and Vapi (Gujarat), had high CEPI scores and were still critically polluted, actually were worse off. Observing that in September 17, 2013, vide an Office Memorandum (OM), moratorium was re-imposed in these eight areas though it was lifted from these areas earlier.

But in the last one year, the NDA government has substantially diluted this preventive attempt. A few instances:

• Shortly after taking office on June 10 2014, the MoEF&CC decided to “keep in abeyance” the September 2013 order. It noted that re-imposition of moratorium in eight CPAs will be kept in abeyance till CPCB reassesses the CEPI, taking into account all constituents of index as originally envisaged in 2009.
• For the time being, the ministry also gave certain conditions for clearance of projects in these areas, such as all projects requiring EC in these areas to be considered only by MoEF&CC, in addition to monitoring by regional office, third party monitoring by a reputed agency will be required and implementation of the action plan of each of these eight CPAs will be jointly reviewed by the CPCB and SPCB on quarterly basis and subsequently report sent to MoEF&CC, among other conditions.
• The MoEF&CC, in another OM on September 1, 2014, pronounced to keep in abeyance the moratorium on Chandrapur CPA in Maharashtra. The action was taken observing that “coal mining activities do not seem to be major contributors of pollution load in the area”, as mining activities are site specific. It was noted that moratorium will be kept in abeyance temporarily (for an year, after which position will be reviewed) for expansion projects of existing coal mining in the area. The decision is subject to certain stipulations as spelled out in the OM.