Most relaxations & exemptions made for development projects through gazette notifications, office memorandums, orders
Photo: iStock As many as 39 amendments were made to various rules and notifications to the Environment Protection Act (EP Act), 1986 from March 2020 to March 2022, a new report showed.
These changes were made through 123 regulatory instruments such as gazette notifications, office memorandums (OM), circulars, letters and orders issued during the period.
They were aimed at providing relaxations and exemptions to the statutory requirements prescribed under the pre-existing laws. Since these amendments were made via office memorandums, which are internal documents, not in public domain, the report has raised concerns regarding the move.
The report released by VIDHI, an independent legal research think tank, mapped the changes in environmental law regime during the COVID-19 pandemic. It identified procedural lapses in environmental law-making and administrative decisions during the two years of the pandemic.
It also looked into new frameworks formulated for assessing environmental decision-making, publishing a comprehensive database on executive orders issued under EP Act.
EP Act is the umbrella legislation that gives the central government powers to regulate human activities in the interest of the environment.
Under Section 3 of the EP Act, the Government of India has the power to take measures to protect and improve the environment. This also includes discretionary power to take measures for any such matter, which it deems necessary to implement the Act.
This discretionary power has been used to issue EIA Notification and the Coastal Regulation Zone (CRZ) Notification 2019.
Section 5 empowers the government to issue directions to any person, officer, or authority while under Section 6, it can notify rules to regulate environmental pollution. The rules made under this Act must be tabled before the Parliament, which acts as a check against rules that are drafted in excess of the power delegated to the executive.
Since these powers are broad in nature, the central Government may issue a wide range of orders under them, which may be quasi-judicial (orders which adjudicate upon the rights of a few identified individuals) or administrative (orders issued for the day-to-day implementation of the law). This may include office orders, OM, circulars, general communications, among others.
The report analysed 74 gazette notifications, 42 OMs and seven circulars as well as letters and orders published by the Union Ministry of Environment, Forests and Climate Change in the two years of the pandemic.
In its analysis, it found that 39 of 123 of these instruments were amendments made to various rules and notifications under the EP Act. A majority of the changes (14) were made to the EP rules, followed by 13 amendments to the EIA Notification. Of these 12 aimed at providing relaxations and six exemptions to the statutory requirements.
The report read:
54 instruments were related to developmental and industrial activities, followed by 48 affecting the functioning of various institutions and statutory bodies such as the State Level Environmental Impact Assessment Authority (SEIAA), Expert Appraisal Committees (EAC), etc. Most of the remaining 21 instruments are related to regulation of ecosystems/natural resources such as the coastal areas, groundwater and waste management, etc..
Among the 74 gazette notifications, the government waived off the requirement of public notice for amending the EIA Notification in 16. This was done by invoking Rule 5 (4) of the EP Rules that empowers the government to impose such prohibitions and restrictions only for the protection of environment in a particular area.
Some of the amendments brought to the EIA Notification using this exception, downgrade environmental protection measures imposed on polluting industries without assessing the potential environmental impact, the analysis noted. “This is against the mandate of the EP Act. Such amendments are not only ultra vires the EP Act but are also regressive in nature.”
The analysis further states that 62 per cent of all OMs (26 of 42) issued during the period are related to government issuing directions to authorities and agencies such as the Expert Appraisal Committee, relaxations to industries and seeking to amend the statutory procedures and create exceptions to the legislative mandates. This constitutes 21 per cent of all the instruments analysed.
The report raised concerns that substantial changes in the statutory provisions are being introduced through OMs, which are internal documents of the government used for inter- and intra-departmental communication of decisions and are not mandatorily required to be in the public domain.
The authors of the report state that these OMs should not be used as instruments for issuing important environmental decisions and any such decision should be widely published as a notification in the official gazette of India.
“Overall, 18 per cent of all the instruments analysed are found to be ultra vires the EP Act, which includes 10 gazette notifications and 12 OMs. 24 gazette notifications and 13 OMs, making 30 per cent of all instruments, are found to be regressive,” the report stated.
As many as 20 of these instruments affect institutional integrity by disregarding statutory obligations, such as the mandate to consult expert appraisal committee dispensing the requirement of public consultations, among others, the report added.
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