NGT Restores Environmental Clearances for Construction Activities

NGT quashed the Centre’s notification which had diluted requirements for environmental clearances for construction.

In a December decision (published recently), the principal bench of the National Green Tribunal quashed a central government notification dated 9 December 2016, which had diluted the requirements for environmental clearances for construction activities.

As a result, the original requirements, which were brought in by the EIA Notification 2006, have been restored. This means that building and construction activities where the built-up area is more than 20,000 square meters require prior environmental clearances, and consent to establish and operate from the relevant State Pollution Control Board.

Why Were the Changes Challenged?

The 2016 notification which changed the requirements had been widely criticised, despite its claims of improving ease of business. Among other things, the amendments meant that:

1. Prior environmental clearances from the State Environmental Impact Assessment Authority were no longer required. Clearances could instead be asked for from a local authority while construction and development was ongoing.
2. The requirement to obtain consent to establish and operate under the specialised water pollution and air pollution Acts was abolished entirely for residential buildings with built-up area up to 1,50,000 square meters.
3. Reports about compliance with environmental clearance conditions were to be filed every 5 years rather than every 6 months.
4. Violations of the environmental clearance conditions would no longer be assessed under the strong Environment Protection Act (a central government legislation), but would be left to new laws by state governments.

The original applicant was an environment protection society, which believed that the move could have a disastrous effect on the environment, and that this would be a step backward. The move would also fall foul of the Supreme Court’s own orders – the clearances and other requirements under Environmental Impact Assessment framework had been introduced as a result of specific orders of the Supreme Court – and existing central legislation (the water and air pollution Acts).

Why Did the NGT Quash the 2016 Notification?

The NGT agreed with the applicant that the “Principle of Non-Regression” was violated by the changes to the law. This is an established principle of international environmental law which holds that a country’s environmental laws should not be modified to the detriment of environmental protection.

By taking away powers of the State Pollution Control Boards and diluting the Environmental Impact Assessment framework, the changes in the 2016 notification actually reduced the environmental protections in operation across the country, and therefore couldn’t be allowed to stand.

The tribunal also found that the 2016 notification violated one of the fundamental rules of law-making, as a subordinate legislation was being used to divest the central government and various environmental authorities of their powers under the Environment Protection Act.

A particularly disturbing aspect noted by the tribunal was that the 2016 notification had been issued without conducting proper study and research. Dilution of environmental requirements could be justified if conditions had improved, but there was nothing on record to establish this. Even more problematically, not only were objections to the draft notifications ignored, the final version of the notifications included things which weren’t there in the draft released for consultation.

Despite these strong objections, the NGT did clarify that certain aspects of the notification were actually useful, such as those looking to decentralise regulations for providing housing to the poor, and the single window mechanism. As a result, these provisions were not quashed, and would apply after the government reissues further notifications after reconsideration.

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