Environmental Clearances In India and Analysis of Role of MOEFCC

Author: Vaishnavi Navghare.

INTRODUCTION

Due to increase in industrialization and environmental pollution from last few decades has brought change in prospective and people have become more aware and concerned about the environmental protection. Many laws came into force and judicial pronouncements which are bringing constant change and raising awareness. With this the process of Environmental clearance has also come a long way since 1994.

“Environmental clearance is the procedure to get clearance from the government for the installation and modification of certain projects”. This is strictly mandatory for the projects which can cause more environmental pollution. Ministry of environment, forest and climate change (MOEFCC) looks after the process of environment clearance and has brought the separate website to make the process online and hassle free.

In this article we are going to do the analysis of process of environmental clearance in India and what role MOEFCC plays in it.

ENVIRONMENTAL CLEARANCE IN INDIA 

What is environmental clearance and how it came in India 

After Independence and industrialization people just stopped caring about environment and started exploiting the environment for their own selfish means. This has brought the adverse effects in environment and biodiversity. Therefore after looking at this lack of awareness and to protect the environment many environmental laws has been enacted in India. The first act enacted in relation to environment is “The Shore Nuisance Bombay and Kolaba Act 1853” and after this many acts were enacted and one such act was in relation to environmental clearance and regulations, environmental regulations were enacted to stop the public activities which can damage and hamper the environment. The environmental clearance is solely regulated by the government of the country and laws and regulations are already enacted in relation to the same. Central government and state government has complete authority to regulate the process of environmental clearance. Important step in environmental clearance is Environmental Impact Assessment (EIA). They both are linked together to support each other. EIA is the process which study and asses all the consequence that can arise from a developmental project. It is strictly done at the starting of any upcoming project to assure that the less damage should be done to the environment.  In the case of S. Kumar V. The District Collector Villupuram District((Madras High Court WP No. 5655/08 and WP No. 21772/2009.)) it was held that Environmental clearance and EIA are linked to each other and support each other. EIA was started in India through the Notification of 1994 till 2006 and then new notification has came in 2006 and how recently MOEFCC has brought EIA notification 2020 new amendments.  

The process of environmental clearance has been always properly streamlined, hassle free and time bound process sticking to the main objective of the process.  Ministry of Environment, Forest and Climate Change, Government of India MOEFCC has launched the online website named “(www.environmentclearance.nic.in)” which has made the complete process online.  

It allows online submission and monitoring of environmental & costal reserve zone (CRZ) clearances mandating online submission of applications for Terms of Reference (TOR) and Environmental Clearance from July 2014 in the Ministry and  July 2015 in the SEIAA, with a view to bring more transparency in the system and expediting the decision making.

Objectives of environmental clearance 

1. The most important objective of environmental clearance is to minimize and reduce the damage which is caused by the decades of Industrialization.
2. Environmental clearance regulations also want to safeguard the environment with all laws and precautions.  
3. Through environmental clearance it aims at assessing all the adverse effects and impacts caused by the developmental projects and try to minimize the upcoming damage by preventive measures.
4. EIA is the important step which every project has to go through and as Environmental clearance and EIA is linked they aim at monitoring and restricting environmental damage.((Source: https://www.cseindia.org/understanding-eia-383))

PROCESS OF ENVIRONMENTAL CLEARANCE IN INDIA 

Authorities involved in the process of clearance 

Project proponent– he is the person or organization who initiates the process and submit the proposal of new project and its work is to prepare complete detailed description of project and present it to stakeholders.

Environmental consultant– environmental consultant is the person who offers the assessment service to the project proponent and provides information about the adverse effects the project can cause on environment so that the damaging effects can be eliminated. Consultant is advise to have knowledge regarding government rules and regulations and news rules of EIA notification and should be accredited by quality council of India.  

Environmental consultant gives consultation regarding water and soil pollution, air and noise pollution, renewable energy, waste management and recycling. He is the most important part of EIA and is responsible of looking into suitability of the project, to find out as per the schedule and category that the project is suitable for clearance, to screen the project as per guidelines of government, to give environment management plan to proponent and to complete documentation in relation to clearance.   

Statutory body and regulatory authority 

Clearance committees are established by the legislature government to assist on clearance issue. As per the notification of EIA 2006 three level statutory bodies that is central level, state level and district level are responsible for looking after the process. The member secretariat committee which are registered at online portal act as processing authority and they are generally senior member of MOEFCC or pollution board.

Process of environmental clearance 

Determination of project category– The first step in this whole process is to determine the category in which the proposed project will fall. Categories are notified in the schedule of notification of 2006. this will decides the further steps and rules, the environmental consultant helps the proponent to do this. Two main categories are-

Category A- It deals at center level, and the projects in this category requires mandatory environmental clearance. This projects usually do not undergo through the process of screening. Project under this category go to the MOEFCC for the clearance process.

Category B- it deals at state level and undergo through mandatory screening process. This category is further dived into B1 and B2 categories. Project in this category goes to state government for the clearance process that is state level environmental impact assessment authority (SEIAA) and state level expert appraisal committee (SEAC). the difference between the B1 and B2 category is that B2 category deals at state and district level and projects in this are excluded from EIA process.((Source: https://indianenvironmentalportal.org.in))

Mandatory Steps followed in order to get the clearance certificate 

Identification of location- the site chosen by the proponent should be according to the guidelines, if it is not then proponent has to choose other location.  

Screening- in this step the project proponent has to assessed in which category the project falls and and to decide whether it needs environmental clearance or EIA or not.

Scoping- scoping involves the determining of terms of reference (TOR) which will address all environmental concerns for preparation of EIA report.  

Public hearing- for certain projects and geographical areas it is the mandatory step to consult public and to take their views and opinions in relation to the project.

Appraisal- documents of the project submitted by the project proponent will be assessed and scrutinize and site visit will also be done if required.((“Environmental Impact Assessment”. Drishti IAS, 2022, https://www.drishtiias.com/to-the-points/paper3/environmental-impact-assessment-1.))

Online application process 

If the project falls under the category A then online application can be filled for environment clearance on the website (www.environmentclearance.nic.in) with the help of environmental consultant.

They also have to attach the documents whose list is already provided if application is proper and in order then it is transferred further to Expert appraisal committee (EAC).

For category A committees are

“Coal Mining, Industrial Projects – 1, Industrial Projects – 2, Infrastructure and Miscellaneous Projects + CRZ, Non-Coal Mining, River valley and Hydroelectric Projects, Thermal Projects”

Then the application is placed before the committee EAC they scrutinize it. Also the project proponents and environmental consultant appear before the panel for presentation. If they become satisfied with the application then further TOR and EIA study is suggested. TOR addresses issue relating to impact assessment study and TOR of various sector is available on website.

Then TOR prepared by the experts are presented before core and peer committee and invitees from MOEFCC and they scrutinize these documents. EAC has new terms that is public consultation for category A and B1 projects. Then after this project proponent will get permission to conduct EIA and the report of the same will be prepared as per the guidelines and conditions.

Then the final step is Appraisal in which all the reports and data is scrutinize and then they will either grant prior environmental clearance or can reject the application.((Source: http://environmentclearance.nic.in/writereaddata/Draft_EIA_2020.pdf))  

Table showing process of EIA ((Ibid.)) 

1.	Make application to MOEFCC through the portal/ website with the submission of TOR
2.	Expert appraisal committee (EAC) and members from MOEFCC will scrutinize the TOR
3.	EIA report will be prepared with the help of consultant accredited by QCI
4.	EIA report will be submitted to pollution control board for public hearing
5.	Proceedings will be initiated and operator will highlight the issues regarding the report.
6.	Final EIA report and undertakings from proceedings will be submitted to MOEFCC for appraisal
7.	Then EAC will recommend MOEFCC to either grant prior environmental clearance on basis of certain conditions or it can reject the application.
8.	The outcome from the EAC meeting will be displayed on MOEFCC portal
9.	Then final environmental clerance letter will be displayed on MOEFCC website.

MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE 

“The Ministry of Environment, Forest and Climate Change (MoEFCC) is the nodal agency in the administrative structure of the Central Government. It mains function is   the planning, promotion, co-ordination and to look after the implementation of India’s environmental and forestry policies and programmes of India”((Source: http://environmentclearance.nic.in/)).

The main work of the ministry is to implement policies and programmes in in relation with the conservation of natural resources of the Nation, which mainly includes Lakes, rivers, forest, biodiversity, wildlife etc. and it also aims to combat pollution.((Source: https://www.sciencebeingjournal.com/sites/default/files/03_0901_EIA.pdf))

Objectives of the Ministry are;

1. Conservation and survey of flora, fauna, forests and wildlife
2. Prevention and control of pollution
3. Afforestation and regeneration of degraded areas
4. Protection of the environment
5. Ensuring the welfare of animals.

Some subordinate offices and institutions indicating the structure of Ministry 

1. “The Indian Forest Act, 1927 
2. The Wildlife (Protection) Act, 1972 
3. The Water (Prevention and Control of Pollution) Act, 1974 
4. The Forest (Conservation) Act, 1980 
5. The Air (Prevention and Control of Pollution) Act, 1981. 
6. The Environment (Protection) Act, 1986 
7. The Public Liability Insurance Act, 1991”.

Some Activities which ministry undertakes 

1. Survey on natural resources like flora and fauna.
2. Look after conservation of natural resources like forest and wildlife
3. To do environmental impact assessment
4. To prevent and control pollution.
5. To look after the management of hazardous substances
6. To look after regeneration and development
7. To do research on wildlife and forest. etc. 

Main role of ministry in EIA process 

1. Scrutinize the TOR at the center level for category A projects.
2. To look after the complete EIA process and to monitor it.
3. To grant environmental clearance certificate.  
4. To look into EIA notifications and to bring new Notifications with amendments.
5. Has the power to bring changes in the process and to introduce new advancements.

CHANGES BROUGHT BY DRAFT EIA NOTIFICATION 2020

Draft EIA Notification 2006

1. In this they classifies projects into two categories, category ‘A’ and Category ‘B’
2. They introduced stages in the process of clearance, that is screening, scoping, public hearing and appraisal.
3. They also gave the list of projects which mandatory need clearance certificate.((Source: http://www.environmentwb.gov.in/pdf/EIA%20Notification,%202006. pdf)) 

Draft EIA Notification 2020

1. They reduced time at the public hearing stage from 30 days to 20 days.
2. Classifies projects in more subcategories, category A,B, (B1,B2).
3. Category B2 projects does not require mandatory clearance certificate, list of the projects which are exempted from this is also given it includes- offshore and onshore oil, gas and share exploration,small medium cement plants, hydro-electric projects upto 25MW etc.
4. Compliance report has to be submitted annually rather than in 6 months and should be solely prepared by the project proponent.
5. It exclude public reporting on non-compliance, now government will take cognizance.
6. Granted post-facto clearance in which “project which is operating without environmental clearance can be regularized or allowed to apply for clearance”. In the case of Alembic Pharmaceuticals V. Rohit Prajapati((2020 SCC OnLine SC 347.)), it was held that “Environment Law cannot countenance the notion of an ex post-facto clearance”
7. Introduced the penalty for the firms if they found violations in the terms of establishment.((Source: http://www.environmentwb.gov.in/pdf/EIA%20Notification,%202006.pdf))

Criticism the EIA Notification 2020 is facing- 

1. By giving post facto clerance they are inviting the contraventions and issues because industries will start working without any clearance certificate and then will keep the project operating by paying penalty.
2. This draft restrict public participation, which intended that they are strengthening the government but are reducing the strength of public as they didi not gave any solution for the political influence on the process of EIA.
3. Government decided not to place any ‘strategic’ project in the public domain by which they are granting lenient clearance certificate to strategic projects.
4. They reduced the time duration of public consultation from 30 days to 20 days from which they are taking less public into consideration, which are lessen the awareness and opinions of public on the developmental projects, and this will make the EIA report tough to study.
5. Less compliance with the international treaties, conventions and negotiations which happened will lower the India’s position at world level.

CASE LAWS    

Electrotherm (India) Limited v. Patel Vipulkumar Ramjibhai (2016)(((2016) 9 SCC 300.))

“The Supreme Court held that, in the interest of being just, it is appropriate to change the nature of the public consultation or public hearing requirement from pre-decision to post-decisional”.

Common Cause v. Union of India (2017)(((2017) 10 SCC 1))

“The Court held that granting an ex-post-facto environmental clearance could be harmful and may cause irreparable degradation of the environment. As per the Supreme Court, the concept of an ex-post-facto or a retrospective EC is totally alien to environmental jurisprudence, including the EIA 1994 and EIA 2006”.

Alembic Pharmaceuticals v. Rohit Prajapati and Ors (2020)((2020 SCC OnLine SC 347.))

“The Court was of the decision that ‘ex post facto’ Environmental Clearance (EC) is against the basic principles of environmental jurisprudence”. 

POOR EIA DONE IN 2020

MOEFCC has granted clearance to around 2115 developmental projects in India from 2014 to 2020 around which 278 are near protected areas. Recent incidents where poor EIA was done are

1. Incident at Bhagwan Mahaveer wildlife sanctuary and Mollen national park of GOA in June 2021. the project was in relation to expanding national highway into four lane. The construction of the same started without environmental clearance. The area was home to 238 species of birds and 722 species of plants and mammals.
2. Another incident happened in Tinsukia District in Assam in June 2020 were oil wells burst near protected areas later came to know that the project was operated without obtaining clearance.  

ANALYSIS 

As compared to earlier manual process the process for obtaining the clearance has now became hassle free as MOEFCC has introduced the online medium for the same. MOEFCC is the governing body when it comes to EIA, therefore it plays the most important role.

The EIA Notification of 2020 is facing many criticism as the process has now favoring the government and not public. As per the draft they reduced the time period of public consultation and Granted post-facto clearance which I are unacceptable as it can give opportunity to government to grant clearance to those project which can give monetary benefits but can cause adverse impact on environment.

Also lately and during pandemic times the clearance is granted to those project which can lead to damage to environment. The MOEFCC being the main body needs to look after and scrap such provisions which can cause damage to environment. They should not reduce the time for public consultation can either reduce the average time for grating the clearance certificate. And they should need to pay more attention towards the international conventions and should reduce the vagueness in the provisions.  

CONCLUSION 

From the data collected we can say that the MOEFCC should work towards strengthening the provisions to prevent the environmental damage and should not give unnecessary relaxation where it is not needed. It should work towards the objective with which the whole Environmental clearance process and should not exploit the nature for monetary benefits and political plays.