New Delhi: The Union Ministry of Environment, Forest and Climate Change (MoEF&CC) on July 7, 2021 issued new standard operating procedures (SOPs) for dealing with cases of industrial projects that are operating without prior environmental clearance under the Environment Impact Notification (EIA), 2006.
Action will be taken against projects that do not have prior environmental clearance, depending on whether they were eligible for a clearance to begin with, per the new SOP. Those found to have been ineligible for clearance will be demolished, while those eligible will be allowed to continue on paying the prescribed penalty.
The process of bringing the new SOP via an office memorandum does not have a strong legal basis, environment lawyers told IndiaSpend. “Office memoranda are issued only to clarify administrative procedures to implement a law, and not to change laws. Unless an amendment is made to the Environment (Protection) Act, 1986 or EIA, 2006, such SOPs issued as office memoranda have no legal basis, as the existing law does not have a provision for allowing post-facto environmental clearance,” said Parul Gupta, an environmental lawyer who practices in the Supreme Court and the National Green Tribunal.
The new SOP is a successor of sorts to the ministry’s notification in March 2017, which had provided a six-month, one-time regularisation window to projects that had not obtained prior environmental clearance per the EIA 2006. The ministry’s decision to issue this new SOP through an office memorandum also contradicts the grounds it had adopted while issuing the 2017 notification, we found.
The SOP’s provisions will not act as a deterrent against violations of environment norms, defeating the purpose of prior environmental clearances mandated by the EIA 2006, say lawyers. It is also similar to the provisions of the draft EIA notification of 2020, which has been challenged before the High Courts of Delhi, Karnataka and Madras, they added.
The new SOP has been introduced at a time when the ministry has been accused of regularly weakening regulatory norms for the establishment of new industries and for industrial expansion, as IndiaSpend reported in January 2020.
Environment ministry officials did not respond to repeated calls seeking their comments.
New SOP contradicts past green tribunal directions
The new SOP to deal with cases of violations has been introduced in compliance with National Green Tribunal (NGT) orders, the environment ministry said in its office memorandum. One of the NGT’s directions the ministry has relied upon is an order from May 24, 2021, in which the NGT said, “A proper SOP be laid down for grant of EC (environmental clearance) in such cases so as to address the gaps in binding law and practice being currently followed. The MoEF [Ministry of Environment and Forest] may also consider circulating such SOP to all SEIAAs [State Environment Impact Assessment Authorities] in the country.”
The NGT’s directions, however, were in the context of “grievance of continuous violation of environment norms in construction projects being completed without prior environmental clearance (EC)” in Maharashtra, and with regard to the functioning of the state’s SEIAA. The case pertained to violations in a Pune residential building complex project where the builder had constructed above and beyond what was permitted in the project’s environmental clearance.
Further, the ministry’s office memorandum contradicts the grounds it had cited when issuing another notification in 2017, which allowed a one-time window for regularising project violations.
In its press release announcing the 2017 notification, the environment ministry had said that it was introducing a six-month, one-time window for projects that had not obtained prior environmental clearance. This, it had said, was being done since many such proposals were received at both the ministry and state levels.
The ministry went on to add the reasons why it was opting to introduce the one-time window, instead of bringing it through an office memorandum. It noted in the press release that in the past, the NGT had quashed office memoranda that introduced a process to grant EC for cases of violation. “The Environment Impact Assessment Notification, 2006 provides for prior environmental clearance, so no procedure can be laid through O.M.s for post environment clearance… O.M. cannot amend a notification, which is a subordinate legislation,” the release noted.
“Though there is a need to bring project violations under the regulatory net, the provisions of the SOP will allow regularisation on an ongoing basis, which defeats the purpose of prior clearances given under the EIA notification, 2006. These provisions are similar to the system proposed in the draft EIA notification, 2020, for dealing with cases of project violations,” said Kanchi Kohli, senior researcher at Delhi-based think-tank, Centre for Policy Research (CPR).
Environmental lawyer Ritwick Dutta said that none of the court judgments the ministry has quoted in its SOP state that post-facto approval is legal and that the ministry should come out with a process to legalise post-facto approval. “The judgement (relied upon in the SOP) in fact states that post-facto approval is fundamentally opposed to environmental jurisprudence,” Dutta said.
“It is also important to highlight that the NGT and the Supreme Court in numerous decisions have clearly stated that the practice of the environment ministry to change environmental laws through mode of office memorandum is illegal and a violation of all legal processes. These documents are ‘non-est’ (do not exist) in the eyes of the law,” he added.
On July 16, the Madurai bench of the Madras High Court ordered an interim stay on the July 7 office memorandum, in response to a public interest litigation arguing that there was no provision in environment laws for granting post-facto clearances.
New SOP’s provisions won’t deter violators, say lawyers
The new SOP states that action against projects will be initiated based on whether they are permissible/allowable under the EIA 2006 in the first place. If a project is not eligible, the Union or state authorities will order demolition or closure after issuing a show-cause notice. A project that is eligible for environmental clearance but does not have one will be issued terms of reference to carry out an environmental impact assessment.
The illegal project activities will also be subjected to damage assessment, remedial plans and appraisal by expert panels at the Union and state government levels, depending on the scale of the project. If it is found during appraisal that the project, though permissible, is not environmentally sustainable, the relevant authorities will order a modification in its scope to make it ‘environmentally sustainable’. Upon appraisal, if a project is not found fit to get a clearance, it may also be demolished or closed.
As far as penalties are concerned, the SOP stated that in case work has not commenced on project, the proponent will have to cough up 1% of the total project cost incurred and in cases where work has begun, the penalty will be 1% of the total project cost, plus 0.25% of total turnover during the period of violation.
Gupta said that the new provisions won’t act as a deterrent. “It encourages violators/polluters to flout the law on one hand and cause irreversible environmental damage on the other,” she said.
“Merely stating that [the SOP] is pursuant to an NGT or High Court or Supreme Court order does not mean that it is a legitimate exercise of authority. It is an illegal act in both letter and spirit. This SOP cannot and should not be given effect to. Rather than waiting for the courts to conclude that the SOP was issued without any legal basis, the ministry will do well to withdraw it on its own,” he said.
We welcome feedback. Please write to respond@indiaspend.org. We reserve the right to edit responses for language and grammar.
Nikhil Ghanekar is a special correspondent at IndiaSpend, reporting on environment, climate change, water resources, wildlife and politics.
Your tax-deductible contribution to IndiaSpend will help us, and other publications around the country, reveal critical stories that otherwise wouldn’t be told – stories that make a difference!
© Copyright 2021
Powered by Hocalwire
canada generic tadalafil generic cialis tadalafil
generic cialis tadalafil cost of cialis
tadalafil cost walmart buy cialis pills
tadalafil blood pressure tadalafil order online no prescription
https://cialistrxy.com/ tadalafil online
tadalafil side effects generic cialis tadalafil
tadalafil online what is tadalafil
https://cialisbusd.com/ tadalafil online with out prescription
canada generic tadalafil side effects for tadalafil
buy generic cialis online with mastercard https://cialisusdc.com/
cialis cost tadalafil online with out prescription
tadalafil side effects generic cialis tadalafil
tadalafil daily online cialis without a prescription
prescription tadalafil online tadalafil brands
best price usa tadalafil where to get tadalafil
https://cialisbusd.com/ cost tadalafil generic
generic cialis tadalafil https://cialisusdc.com/
https://cialiswbtc.com/ tadalafil cost walmart
tadalafil brands tadalafil brands
https://cialisbusd.com/ buy tadalafil
cialis at canadian pharmacy generic cialis online fast shipping
tadalafil online with out prescription where to order tadalafil tablets
tadalafil tadalafil drug
cialis without a prescription best price usa tadalafil
no prescription proventil inhaler
where can i purchase cialis
https://cialisicp.com/ tadalafil online
cialis|buy cialis|generic cialis|cialis pills|buy cialis online|cialis for sale
buy generic cialis online with mastercard where to buy generic cialis online safely
where to order tadalafil tablets cialis without prescription
tadalafil generic where to buy cheap cialis pills for sale
cialis 20 mg price canada
buying viagra in canada safely
generic cialis medication
cheap generic cialis 60 mg
atarax uk
tadalafil blood pressure where to buy cialis without prescription
stromectol brand
side effects for tadalafil tadalafil generic
tadalafil generic where to buy generic tadalafil from uk
side effects of tadalafil tadalafil online
discount canadian pharmacy cialis
lowest price cialis cialis tadalafil
tadalafil tablets
https://extratadalafill.com/ cheapest tadalafil cost
buy cialis tadalafil cialis
ivermectin for humans
https://cialisvet.com/ generic cialis online fast shipping
50 mg viagra
buy tadalafil cheap
stromectol cost
allopurinol can you buy in mexico
where can i buy stromectol
ivermectin 3mg dose stromectol covid
stromectol 12mg
top 10 tadalafil websites cialis tadalafil dosage
805551 sildenafil where can you buy viagra over the counter
buy ivermectin cream for humans stromectol online canada
https://cialismat.com/ where to buy cialis without prescription
buy tadalafil where to buy tadalafil on line
tadalafil cialis cheap cialis pills for sale
where can i buy oral ivermectin ivermectin cream 5%
ivermectin coronavirus ivermectin india
ivermectin cost uk ivermectin oral solution
ivermectin 1% ivermectin 10 ml
order stromectol online price of stromectol
ivermectin cost in usa stromectol tablet 3 mg
ivermectin 1 buy ivermectin pills
ivermectin 5ml stromectol tab
stromectol buy ivermectin ireland
stromectol xl where can i buy oral ivermectin
side effects of sildenafil sildenafil citrate side effects
buy stromectol online ivermectin cost uk
which statement is accurate regarding sildenafil? sildenafil maximum dose
is viagra cheaper than levitra viagra cialis levitra
mexican pharmacy online oxycodone most abused prescription drugs
viagra 150 mg pills sildenafil prescription discount
highest rated canadian pharmacy canadian pharmacies store safe to use
vyvanse online pharmacy walmart pharmacy camino canada
canadian pharmacy viagra paypal cheap generic viagra usa
where can i buy tadalafil online tadalafil oral jelly
ivermectin humans ivermectin rats
how does ivermectin work buy stromectol 6 mg online
levitra from canada levitra online purchase
pharmacy school cvs pharmacy canada online
cialis with out perscription cialis at costco
levitra price walgreens canadian pharmacy levitra value pack
eli lilly cialis coupon how long does cialis take to kick in
pharmacy discount coupons canada pharmaceutical online ordering
black market prescription drugs best european online pharmacy
best canadian pharmacies reviews canada drugs lp of canada
rx pharmacy online 24 online pharmacies uk
Malegra DXT buy online pharmacy uk
quality rx pharmacy hyde park ma ordering drugs from canada
order modafinil generic
drysol canada pharmacy jans pharmacy canada
order provigil pills
canadian pharmacy pet meds trust pharmacy
cost modafinil 100mg provigil 100mg tablet buy provigil pill
erythromycin for ear infection
provigil generic provigil 200mg pill provigil 100mg generic
list of approved canadian pharmacies canadian pharmacy complaints
order generic provigil buy provigil 200mg online
provigil 100mg generic provigil online buy
buy provigil 200mg pill
provigil ca
order modafinil 200mg pills buy provigil online cheap
order modafinil for sale buy modafinil provigil 200mg price
erythromycin cream for acne http://erythromycinn.com/#
erythromycin for gastroparesis
order generic modafinil 100mg purchase modafinil for sale
where Can I Get Samples If Cialis Or Viagra?
buy generic provigil 200mg
erythromycin cream for acne https://erythromycinn.com/#
https://erythromycin1m.com/# erythromycin for gastroparesis
which Country Has Over The Counter Cialis?
https://erythromycinn.com/# erythromycin ophthalmic ointment usp
how Often Can You Take 20mg Cialis?
how Long Will Cialis Daily Take To Work?
provigil order online order provigil 100mg online
erythromycin antibiotic https://erythromycin1m.com/#
buy plaquenil 200mg hydroxychloroquine 200mg for arthritis
stromectol otc
http://www.hydroxychloroquinex.com/ order plaquenil for sale
stromectol online order stromectol online
does hydroxychloroquine require a prescription hydroxychloroquine for sale over the counter order plaquenil online
Pingback: 3attorney
stromectol canadian pharmacy buy ivermectin 6 mg
hydroxychloroquine generic buy plaquenil pill kiteboarding