Above: Sonthi Barrage in Karnataka standing without Environmental Clearance
The Ministry of Environment, Forests and Climate Change has issued a Draft Notification which aims to “regularise” projects which have violated the basic tenet of Environment Law and Governance in the country: starting work without securing Environmental Clearance. While any such violation should be punishable to deter any contempt of the much-abused environment laws, the Ministry is seeking to do just the opposite: Regularize the violations by constituting a wishy-washy Environmental Supplemental Plan, as outlined in the Draft Notification.
This seems like one of Mr Prakash Javdekar’s last acts as Environment Minister (before he got transferred to HRD with promotion to cabinet rank) that, typically similar to his other acts during his seriously problematic two year tenure, was totally against what he was expected to do: Protection of environment. We hope the new incumbent at MoEF&CC will cancel this notification immediately.
Comments are invited on the Draft. Last date for sending comments is very close: 9th of July 2016. We request you send in comments to the MoEF and CC (email addresses: firstname.lastname@example.org and email@example.com) and feel free to use the submission below:
Secretary, Ministry of Environment, Forest and Climate Change,
Indira Paryavaran Bhawan, Jor Bagh Road,
Aliganj, New Delhi-110 003,
We have gone through the Draft Notification related to Environmental Supplemental Plan published on the 10th of May 2016 in the Gazette of India. We have several points to make about this Notification, as given below. This does not limit us from making further submissions and to challenge the Notification in the court of Law.
At the outset, The Draft Notification is “Ultra Vires the provisions of the Environment (Protection) Act of 1986 and the EIA Notification of 2006. It suffers from infirmity of lack of inherent jurisdiction and authority” as was pointed out by the Hon. National Green Tribunal in its judgement dated 07th July 2015.
The mandatory nature of both the 1986 Act and the EIA Notification of 2006 has been highlighted by the NGT in its judgment dated 07 July 2015, dealing with the same issue as under:
“In our considered opinion, the provisions of this enactment are substantive and mandatory. These provisions do not admit of any substantial non-compliance or vest discretion with the authorities in relation to procedure prescribed under the Notification. They are couched in a language that is purely mandatory in character and is founded on the Precautionary Principle which is one of the statutory principles to be applied by the Tribunal in terms of Section 20 of the Act of 2010. If compliance is not made to the provisions of these enactments, it will totally frustrate the Precautionary Principle and thus the precautionary principle can adversely impact the environment, protection of which is the sole object of the Act of 1986.
Thus, in view of the above discussion, it is clear that the requirements of the Notification of 2006 are mandatory in character. Their default or non-compliance is liable to be punished. The intention of the Legislature is to protect the environment for which words of specific nature like ‘prior’ and ‘shall’ have been used. The impact of non-compliance of these provisions would be of serious consequence, not only on environment but upon the society at large. All these enactments are unambiguous and framed in no uncertain terms and this conveys that projects commenced without obtaining Environmental Clearance would invite the penalty postulated under the Act of 1986.”
There is no provision either in the Environment Protection Act 1986 or the EIA Notification 2006 to “regularize” violations post facto. Hence, the Government cannot bring out a Notification which, in effect, tries to blatantly regularize the most serious of violations of the EPA and EIA Notification 2006: Starting work on project without securing Prior Environmental Clearance. In fact, any move other than undertaking stringent legal measures to curtail violations is illegal and a very serious assault on India’s Environment Legislation. That it comes from the Government itself is highly unfortunate. The Track record of MoEF&CC taking any punitive actions against violators of EPA (1986), EIA Notifications (1994 and Sept 2006), Water (Prevention and Control of Pollution) Act and Air (Prevention and Control of Pollution) Act remains poor. There is a clear space in these Acts to take action against the violators, which the government is obfuscating.
Hence, for legal reasons alone, the Draft Notification needs to be taken back in its entirety as soon as possible.
Nonetheless, we are pointing out some significant issues with the Notification itself:
- The Notification claims: “The Ministry deems it necessary to bring the projects and activities which require prior environmental clearance in the Environment Impact Assessment Notification, 2006 under compliance with the environmental laws and in regulated community in the interest of the environment at the earliest point of time rather than left them unregulated and unchecked, which will be more damaging to the environment” (Emphasis added)
This is a completely misleading and a false claim. Providing loopholes and escape routes to proponents, rather than stringent and legal action, the law being substituted by a wishy washy, legally untenable and problematic Environmental Supplemental Plan is not regulation. If the Ministry is indeed serious in taking action against violations, there are several legal ways to deal with violators like criminal proceedings outlined in the Environment Protection Act (1986) and the Air and Water Pollution Control Acts.
- The Notification states: “The Government of India deems it essential to grant environmental clearance with adequate safeguards to entities which were non-compliant to make them compliant.”
This statement reflects the understanding that issuing Environmental Clearance to all projects, even those who have violated the basis of environmental governance, is mandatory at all costs. That is clearly not the case and this is also not legally tenable.
- Expert Group: The constitution of Expert Group, which is supposed to work on the Environmental Supplemental Plan (ESP) is not even mentioned. Who will constitute this body? Will it have space for community participation? Nor is The Expert Group independent. In fact, it is supposed to “work with the proponent” on preparing the ESP, thus making the group open to pressures from a violating body.
- The Draft Notification States: “The process of appraisal of the project for grant of environmental clearance and preparation of the Environmental Supplemental Plan shall be carried out simultaneously.” This is seriously problematic again, making it clear that Environmental Clearance will not even depend on the performance of the proponent on the so called Environmental Supplemental Plan! Only paperwork on the Plan progressing side by side with Environmental Clearance Process is enough!
- The Notification is extremely vague at best when it comes to what constitutes as an Environmental Supplemental Plan. Stated Priorities are:
- Environmental Justice
- Pollution Prevention
- Innovative Technologies
- Climate Change
Nowhere is the scale, nature and massiveness of impacts of the violations linked with the ESP. The Notification pays lip service to all of these themes and tries to fit these themes into Environmental Supplemental Plan. This is downright dangerous. As Environment Lawyer Ritwick Dutta says, “How can a proponent, who has itself violated the basis of Environment Justice, work and legitimize its violation on working on Environmental Justice?”[i] In case of Climate change too, the Draft Notification states: “action by community members for adaptations to make the communities more resilient in the face of climate impacts will also qualify as ESPs.”
How does action by community reduce Proponent’s liability for violating Environmental Laws??
There is no role for the community in the decision if the violator deserves to be allowed to go ahead or not, either based on ESP on paper or its implementation.
- Categories of Environmental Supplemental Plan are supposed to include: Public Health, Pollution Prevention, Pollution Reduction, Environment Restoration, Assessment and audits, Environment Compliance Promotion.
Again, there is a huge irony involved in this. Can a violator of Environmental Laws be left off the hook by making an Environmental Supplemental Plan based on paperwork like Assessments and Audits ?? or Environment Compliance Promotion?
If a dam is already built on a river, submerging forest lands and impacting the downstream irreversibly, will a Plan based on Assessment and Audits or Environment Compliance Promotion be enough? Can it remedy the loss? Who is to assess that?
- Checks and balances for the Expert Body? The constitution of Expert body is not clear, neither is the basis on which the Expert Body is supposed to clear the ESP. Who will select ESP? What is the criteria for selection? Will this decision making process be in public domain? Will there by prior information in public domain so that communities and NGOs are able to participate in the process? Will there be an oversight on the functioning and the criteria used by this Expert body?? The Draft Notification is silent on these issues.
- Monitoring of the ESP: Shockingly, there is no third party monitoring involved in the implementation of the ESP! No agency is held responsible for this. There is no monitoring schedule at all! The monitoring of compliance and actual compliance of EC conditions and “Conditional Clearances” by the proponent is in a pathetic state, as shown by SANDRP multiple times.[ii]
- Self-Certification! Most shockingly, it is the Proponent itself which will self-certify the implementation of ESP: The same Proponent which violated Environmental Laws in the first place!
There is no monitoring involved even in the final completion of the ESP.
And to top it, there are no strong clear steps outlined as to what will happen if ESP is not implemented in time. Only “action will be initiated accordingly”. What will be the action? One more ESP process??
SANDRP had written to the MoEF&CC exactly a year back to suspend the Environmental Clearance granted and being considered for projects which have violated Environmental norms.[iii] Unfortunately, we did not hear from the MoEF&CC at all.
It is the basic duty of the MoEF&CC to protect environment and uphold the Laws of the land, to deter violations and punish offenders. As it is, we have no credible monitoring and compliance system is non existent as even Mr Javdekar has accepted publicly.
There are several Environmental Laws which have evolved as a result of long drawn efforts of several groups and communities. It is unacceptable that the Government itself, and the MoEF&CC is enabling an environment where violations may not be an exception, but a norm. It is simplifying a system from Polluter Pays to “Pollute and Pay[iv]”, at the cost of environment and weaker sections.
Expert body–centric ESP sounds like License Raj of the worst kind, without transparency, accountability and participation.
Finally, the Draft Notification states, under the Section (3), sub section (3) of the EPA, “the Central Government has the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling, and abating environment pollution.”
The ESP and post facto pushing of violating projects, willfully ignoring established environmental laws can in no way contribute to “improving quality of environment”. As Ritwick Dutta puts it: “One of the emerging principles guiding environmental law is the ‘principle of non-regression.’ It means that the states cannot dilute existing environmental laws and consistent efforts should be made only towards strengthening them to protect the environment. The draft notification is in clear violation of this principle.”
We urge the Ministry and the Government to take back the Draft Notification as soon as possible and devise clear guidelines to deal with violators, based firmly on the existing Laws. The Draft Notification will not stand in the courts of law and has a potential to be a major embarrassment to the government.
In today’s situation where credibility of MoEF&CC is at historic low, where monitoring and compliance of environmental norms is nonexistent and where MoEF&CC is seen more like an agent for growth-at-any-cost rather than known for protection of environment, this notification will only further reduce people’s confidence in environmental governance in India.
Looking forward to hearing from you,
South Asia Network on Dams, Rivers & People, Delhi/ Pune