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Environmental Clearance in India: Legal Framework, Procedure, and Judicial Developments

Environmental Clearance in India: Legal Framework, Procedure, and Judicial Developments

Introduction

Environmental Protection has now emerged as one of the most critical challenges being faced by modern governments owing to the emergence of rapid industrialization, urbanization, and infrastructure creation. The development process exerts tremendous pressure on natural resources and ecology. For achieving the objectives of development in an environmentally friendly manner, India has opted for the Environmental Clearance (EC).[1]

The legal framework of Environmental Clearance of India is provided under Environment (Protection) Act, 1986 and Environmental Impact Assessment (EIA) Notification, 2006.[2] The concept of EC helps the government to evaluate the environmental impact of a project and ensure that the developmental process takes place in an environmentally safe way.

Through the process of evaluation and granting clearance of a project in an environmentally friendly manner, sustainable development can be achieved.[3]

  1. Environmental Clearance

Environmental Clearance (EC) is a process under which a prior permission is taken from the appropriate environmental agency regarding certain projects and activities. It involves regulating the environment’s impact by way of these proposed projects prior to implementing them.

Environmental Clearance entails incorporating environmental factors during planning and decision-making stages. Environmental Clearance also includes identifying, evaluating, and mitigating any environmental impact that may arise from applying the strategies involved.

Environmental Clearance is an approach which has been premised on the concept of prevention being better than cure.[4] In other words, Environmental Clearance does not involve solving environmental problems after they have arisen; instead, Environmental Clearance seeks to prevent such problems from occurring.

  1. Legal Framework for Environmental Clearance in India
  2. Constitutional Framework

The Constitution of India contains laws for the basic legal framework within which the environmental governance takes place in the country.

According to Article 48A,[5] “It shall be the duty of the state to endeavour to protect and improve the environment and safeguard the forests and wildlife of the country.”

According to Article 51A[6], it would be the duty of every citizen of the country to protect and improve the environment and preserve the rich heritage of our nation.”

Right to Pollution-Free Environment And Right To Healthy Environment under the Constitution of India is also conferred on Indian Citizens as per the decisions of the Supreme Court of India, as per the provisions of Article 21.[7]

  1. (Environment Protection) Act, 1986

The (Environment Protection) Act, 1986,[8] is the very first legal enactment of India concerning environmental laws. After the Bhopal gas tragedy,[9] the EPA act gave the Central government the authority to take action with respect to the environment.

Under Section 3 of EPA, 1986[10], the Central Government can regulate all those activities which affect the environment adversely.

  1. Environment Impact Assessment Notification, 2006

The Environment Impact Assessment Notification, 2006[11] has been made under the provisions of the Environment Protection Act (EPA) 1986. This is an important piece of legislation for project clearances from environmental point of view.[12]

This notification specifies projects and activities which need environmental clearance before starting the work. There have been a number of amendments made from time to time.

  1. Other Statutes

Apart from that, Environmental Clearance may be required in respect of:

  1. Forest Conservation Act, 1980[13]
  2. Wildlife Protection Act, 1972[14]
  3. Water (Prevention and Control of Pollution) Act, 1974[15]
  4. Air (Prevention and Control of Pollution) Act, 1981[16]
  5. Biological Diversity Act, 2002
  6. National Green Tribunal Act, 2010[17]

III. Types of Industries and Projects that Need an EC

Projects are divided into Category A and B under the EIA notification of 2006.[18]

  1. Projects under Category A[19]

These are the type of projects that may pose high environmental impacts, which need clearance from MoEFCC.[20] Examples are:

  • Large-scale mining projects.
  • Large power generating stations like thermal power plants.
  • River valley projects.
  • Petroleum refineries.
  • Large ports and harbors.
  • National highways and expressways.
  • Large industrial estates.
  1. Category B Projects

These types of projects require approval from the State Environmental Impact Assessment Authority (SEIAA).[21] Examples are:

  • Small mining projects.
  • Medium sized construction projects.
  • Limited industrial estates.
  • Some other infrastructure works.[22]
  1. Category B1 & B2 Projects

Project Category B is further sub-categorized as:

  • B1 projects

Need to be subjected to EIAs and public consultations.

  • B2 Projects

Exempted from undergoing detailed EIAs or public consultation because of the relatively low impact on the environment.

Sectors That Require EC

Some major sectors that require EC are:

  • Mining sector.
  • THERMAL AND NUCLEAR Power generation.
  • River valley projects.
  • Infrastructural works.
  • Construction and buildings projects.
  • Industrial manufacturing units.
  • Chemical industries.
  • Petroleum and gas-related works.
  • Harbors and airfields.
  • Waste disposal sites.

Authorities for Environmental Clearance

  1. Ministry of Environment, Forest and Climate Change (MoEFCC)

The Ministry of Environment, Forest and Climate Change (MoEFCC) is the agency that has to provide Environmental Clearance for Category A projects. This process is done as per the recommendations of the EAC.

  1. Expert Appraisal Committee (EAC)

This committee comprises individuals who are experts in the field of environmental science, ecology, engineering, forestry, and other fields. Tasks include:

  • Evaluation of project proposal.
  • Analysis of EIA report.
  • Calculation of environmental impacts.
  • Giving recommendation regarding approval or rejection of projects.

 

  1. State Environmental Impact Assessment Authority (SEIAA)

SEIAA grants Environmental Clearance for Category B projects in concerned state.

  1. State Expert Appraisal Committee (SEAC)

SEAC members work like the EAC but at State level, assisting SEIAA regarding project clearance.

  1. National Green Tribunal (NGT)

The NGT does not function as an agency which provides Environmental Clearances. However, the significance of this organization lies in its monitoring Environmental Clearances for their legal validity.[23]

  1. Process of Grant of Environmental Clearance

Environmental Clearance as per EIA Notification 2006 consists of four main steps.

  1. Screening

Screening is applied mostly for Category B projects.[24]

The objective of this process is to determine whether the environmental impact assessment of the project is required.

  1. Scoping

Terms of Reference (ToR)[25] are developed by the Expert Appraisal Committee or State Expert Appraisal Committee for carrying out the EIA.[26]

Terms of Reference include:

  • Environmental elements that have to be analyzed.
  • Data to be gathered.
  • Impact assessment methods.
  • Mitigation measures.
    1. Preparation of EIA Report

Project proponents conduct environmental studies and prepare an EIA Report. EIA Report typically covers the following topics:

  • Baseline environmental status.
  • Effects expected.
  • Risk assessment.
  • Environmental Management Plan (EMP).
  • Mitigation measures.
  • Cost-benefit analysis.
    1. Public Consultation

This step ensures participation in the process of community members. This step involves:[27]

  1. Public Hearing

Organized by State Pollution Control Board. Members of the local community may raise concerns about the project.[28]

  1. Written Comments

Stakeholders can give their written comments about the project. There are some exceptions regarding certain types of projects.

  1. Appraisal

The EAC or SEAC takes into consideration:

  • EIA Report.
  • The outcome of the public consultation.
  • Environmental Management Plan.
  • Conformity to all applicable laws.

Accordingly, the committee gives its recommendation for either accepting or rejecting the application.

 

  1. Grant or Rejection of Environmental Clearance

The competent authority takes the decision after reviewing the recommendations by the committee. If the application is accepted, the Environmental Clearance is granted with the following terms and conditions:

  • Pollution controls.
  • Monitoring procedures.
  • Environmental safeguards.
  • Fulfilling compliance with the terms periodically.
  1. Instances Where Environmental Clearance May be Refused[29]

There are several cases where Environmental Clearance could be refused as follows:[30]

  1. Unsound Environmental Impact Assessment

Where the EIA report is incomplete, inaccurate, misleading, or scientifically deficient.

  1. Environmental Degradation

If there is an element of risk in harming the ecosystem, biodiversity, forests, human lives, habitats for wildlife, and other such things,[31]

  1. In case of any inadequacy in the EIA report

Non-Compliance with the Legal Framework. Denial of clearance in case of non-compliance with applicable standards and processes.

  1. Negative Public Interest Implications

When there are significant concerns raised during public consultation.

  1. Misrepresentation of Facts

Environmental Clearance can be either refused in the first place or later rescinded if false information is provided.[32]

  1. Unsustainable Projects

Unsustainable projects may not be approved.

VII. Judicial Principles and Significant Landmark Judgements

The Indian judiciary has contributed tremendously to the process of development of the Environmental Clearance Process.

  1. Vellore Citizens Welfare Forum vs Union of India

Regarding Indian Environmental Law, the Supreme Court of India has considered both Precautionary Principle and Polluter Pays Principle while deciding upon the case. [33]The court opined that precaution must be one of the necessary principles of environmental laws in order to prevent any future environmental damages.

  1. Narmada Bachao Andolan vs Union of India

The environmental problems related to the Sardar Sarovar Project have forced the Supreme Court of India to give emphasis on the assessment of environmental impact of developmental projects.[34]

  1. Lafarge Umiam Mining Pvt. Ltd vs Union of India

Sustainable Development Principle and the importance of science-based approach while dealing with ecological issues in respect of environmental clearance has been elucidated in the judgment.

  1. Common Cause vs Union of India

Court looked at the violation of environmental norms[35] and their compliance with the environment clearance issued for mining activities.[36]

  1. Hanuman Laxman Aroskar v. Union of India

Supreme Court of India overturned the Environmental Clearance given for Mopa Airport Project at Goa due to procedural defects in giving environmental clearance.[37]

It stressed on the importance of process and environmental impact assessments while granting Environmental Clearances.

  1. Alembic Pharmaceuticals Ltd. v. Rohit Prajapati[38]

Environment clearances given ex-post facto were considered violative of the concept of environmental law and prevention measures associated with the same.

Principles Governing Environment Clearances

These principles will govern environmental cases:

  1. Principle of Precautionary Measure –[39] It is a principle of taking precautionary measures if there is expected damage to the environment.[40]
  2. Principle of Sustainable Development [41]– It is a principle requiring that no development activity should result in deprivation of needs of future generations.
  3. Polluter Pay Principle[42] – It is a principle requiring the polluter to pay for the pollution.
  4. Principle of Public Trust[43] – It is a principle under which the government must manage the natural resources in the interest of its citizens.[44]
  5. Intergenerational Equity [45]– Saving the environmental resources for the coming generations.

Conclusion

Environmental clearance has an important place in the system of environmental management in India. Including the issue of environment in the process of environmental impact assessment results in sustainable development. As per the provisions of Environment (Protection) Act, 1986, and EIA Notification, 2006, the processes of environmental impact assessment, public hearings, and expert evaluation of developmental activities become easy. Moreover, judicial decisions of the Supreme Court of India and the National Green Tribunal in India have improved the system of Environmental Clearance through accountability and transparency in the environment. A strong Environmental Clearance process is important for economic development in India.

Bibliography

A. Constitutional Provisions

  • INDIA CONST. art. 21.
  • INDIA CONST. art. 48A.
  • INDIA CONST. art. 51A(g).

B. Statutes

  • Air (Prevention and Control of Pollution) Act, No. 14 of 1981, India Code (1981).
  • Biological Diversity Act, No. 18 of 2003, India Code (2003).
  • Environment (Protection) Act, No. 29 of 1986, India Code (1986).
  • Forest (Conservation) Act, No. 69 of 1980, India Code (1980).
  • National Green Tribunal Act, No. 19 of 2010, India Code (2010).
  • Water (Prevention and Control of Pollution) Act, No. 6 of 1974, India Code (1974).
  • Wild Life (Protection) Act, No. 53 of 1972, India Code (1972).

C. Notifications and Delegated Legislation

  • Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, Section 3(ii) (Sept. 14, 2006).

D. Cases

  • P. Pollution Control Board v. M.V. Nayudu, (1999) 2 S.C.C. 718.
  • Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 S.C.C. 157.
  • Common Cause v. Union of India, (2017) 9 S.C.C. 499.
  • Hanuman Laxman Aroskar v. Union of India, (2019) 15 S.C.C. 401.
  • Lafarge Umiam Mining Pvt. Ltd. v. Union of India, (2011) 7 S.C.C. 338.
  • C. Mehta v. Kamal Nath, (1997) 1 S.C.C. 388.
  • Narmada Bachao Andolan v. Union of India, (2000) 10 S.C.C. 664.
  • Rural Litigation & Entitlement Kendra v. State of Uttar Pradesh, 1985 Supp. S.C.C. 79.
  • State of Himachal Pradesh v. Ganesh Wood Products, (1995) 6 S.C.C. 363.
  • Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 S.C.C. 575.
  • Subhash Kumar v. State of Bihar, (1991) 1 S.C.C. 598.
  • N. Godavarman Thirumulpad v. Union of India, (1997) 2 S.C.C. 267.
  • Vellore Citizens Welfare Forum v. Union of India, (1996) 5 S.C.C. 647.

E. Government Sources

  • Ministry of Environment, Forest and Climate Change, Government of India, Environmental Impact Assessment Notification, 2006.
  • Ministry of Environment, Forest and Climate Change, Government of India, Environmental Clearance Process and Regulatory Framework.

F. Secondary Sources

  • Leelakrishnan, Environmental Law in India (5th ed. 2019).
  • Shyam Divan & Armin Rosencranz, Environmental Law and Policy in India (3d ed. 2019).
  • C. Shastri, Environmental Law (8th ed. 2021).

 

 

 

 

[1] Environment (Protection) Act, No. 29 of 1986, § 3, India Code (1986).

[2] Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, Section 3(ii) (Sept. 14, 2006).

[3] Vellore Citizens Welfare Forum v. Union of India, (1996) 5 S.C.C. 647.

[4] Rural Litigation & Entitlement Kendra v. State of Uttar Pradesh, 1985 Supp. S.C.C. 79.

[5] INDIA CONST. art. 48A.

[6] INDIA CONST. art. 51A(g).

[7] Subhash Kumar v. State of Bihar, (1991) 1 S.C.C. 598.

[8] Environment (Protection) Act, No. 29 of 1986, § 3.

[9] Environment (Protection) Act, No. 29 of 1986, Statement of Objects and Reasons.

[10] Environment (Protection) Act, No. 29 of 1986, § 3.

[11] Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, Section 3(ii) (Sept. 14, 2006).

[12] Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, Section 3(ii) (Sept. 14, 2006).

[13] Forest (Conservation) Act, No. 69 of 1980, India Code (1980).

[14] Wild Life (Protection) Act, No. 53 of 1972, India Code (1972).

[15] Water (Prevention and Control of Pollution) Act, No. 6 of 1974, India Code (1974).

[16] Biological Diversity Act, No. 18 of 2003, India Code (2003).

[17] National Green Tribunal Act, No. 19 of 2010, India Code (2010).

[18] Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, Section 3(ii) (Sept. 14, 2006), Schedule.

[19] Environmental Clearance for Category A projects”

[20] Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, Section 3(ii) (Sept. 14, 2006), Schedule.

[21] Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, Section 3(ii), ¶ 2 (Sept. 14, 2006).

[22] Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, Section 3(ii) (Sept. 14, 2006), Schedule.

[23] National Green Tribunal Act, No. 19 of 2010, § 16, India Code (2010).

[24] Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, Section 3(ii) (Sept. 14, 2006), ¶ 7(i).

[25] Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, Section 3(ii), ¶ 7(ii) (Sept. 14, 2006).

[26] Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, Section 3(ii), ¶ 7(ii) (Sept. 14, 2006).

[27] Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, § 3(ii), ¶ 7(iii) (Sept. 14, 2006).

[28] Environmental Impact Assessment Notification, S.O. 1533(E), Gazette of India, Extraordinary, Part II, § 3(ii), ¶ 7(iii) (Sept. 14, 2006).

[29] Hanuman Laxman Aroskar v. Union of India, (2019) 15 S.C.C. 401.

[30] T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 S.C.C. 267.

[31] Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 S.C.C. 575.

[32] Hanuman Laxman Aroskar v. Union of India, (2019) 15 S.C.C. 401.

[33] Vellore Citizens Welfare Forum v. Union of India, (1996) 5 S.C.C. 647.

[34] Lafarge Umiam Mining Pvt. Ltd. v. Union of India, (2011) 7 S.C.C. 338.

[35] Sterlite Industries (India) Ltd. v. Union of India, (2013) 4 S.C.C. 575.

[36] Common Cause v. Union of India, (2017) 9 S.C.C. 499.

[37] Hanuman Laxman Aroskar v. Union of India, (2019) 15 S.C.C. 401.

[38] Alembic Pharmaceuticals Ltd. v. Rohit Prajapati, (2020) 17 S.C.C. 157.

[39] Vellore Citizens Welfare Forum v. Union of India, (1996) 5 S.C.C. 647.

[40] A.P. Pollution Control Board v. M.V. Nayudu, (1999) 2 S.C.C. 718.

[41] Narmada Bachao Andolan v. Union of India, (2000) 10 S.C.C. 664.

[42] Vellore Citizens Welfare Forum v. Union of India, (1996) 5 S.C.C. 647.

[43] M.C. Mehta v. Kamal Nath, (1997) 1 S.C.C. 388.

[44] T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 S.C.C. 267.

[45] State of Himachal Pradesh v. Ganesh Wood Products, (1995) 6 S.C.C. 363.

Mansi Mishra
Author: Mansi Mishra

Worked with Little Akshar Pre-Primary School Undergraduate law student at GGSIPU, Delhi (BBA LLB)