Why the courts and the MoEF are on a collision course

Legal reform was one of the most prominent commitments made by the current government in 2014. Besides laws on energy and finance, a specific area targeted for change is the dense legal framework of Acts, regulations, notifications and guidelines that govern environmental approvals to projects. The government started environment law reform as early as August 2014 by setting a High Level Committee to recommend changes to six main environmental laws that regulate development. 

While evidence-based reform that draws on the experience and outcomes of decades-old environmental regulation is welcome, this government has given enough proof of turning this process into a narrow opportunistic exercise. It seeks to gain political benefits by stretching law to accommodate the government’s growth plan. It is no surprise, therefore, that the courts are having to reinstate legal standards by holding off these changes proposed by the government. 

A recent example of the legal backlash faced by the Environment & Forests (MoEF) is in the case of a controversial notification it put out this year. This notification offered projects that had violated the Environment Clearance process, a one-time opportunity to legalise their projects. This move of the government to give back-door approval to projects that had already caused environmental and social impacts was severely criticised by several environmental groups. 

As per the notification of March 14, 2017, the MoEF gave a six-month time period to violators of the Environment Impact Assessment (EIA) notification.  The window expires this week. During this period, over 1,000 units operating without environment clearance have applied for post facto approvals from MoEF’s special expert committee on violations.  This committee of 11 members, under the Chairmanship of Dr SR Wate, was given the power to recommend approvals, set special environmental conditions, ask for full-fledged EIAs or charge the project proponents for damages already caused. 

The committee had its first meeting on June 22, 2017, and has not met thereafter. This is understandable because, in May 2017, the Madras High Court stayed the implementation of this notification. As reported by the legal firm Khaitan and Co., the order was stayed because it violates the provisions of the Environment (Protection) Act, 1986 along with Articles 14 and 21 of the India Constitution. The order restrained the ministry from taking any further action on the said notification.

Among the 1,000 violators who have applied under this notification is a sand miner from Chennai. His 2016 application to the Andhra State Environmental Impact Assessment Authority to expand his Nellore-based mining operations on 16.5 ha of land from 5,000 TPA to 99,555 TPA was rejected on the grounds that he was already over-extracting and had violated the Environment Clearance conditions. In addition, the Pollution Control Board had also taken him to court that ordered him to pay a fine of Rs 1 lakh for these violations. MoEF’s new notification offered a way of legalising this established illegality and understandably, the miner applied for approval under this process on August 23, 2017. The letter specifically states that their operations have come to a standstill now that there is no hope of going back to the SEIAA and the new approval process at the Central Ministry is stayed. 

As per an analysis led by Krithika Dinesh of the CPR-Namati EJ program, 207 applications were received by the ministry between March and June 2017. Many of these were either related to extraction of minor minerals, like in the case cited above, or the real estate sector. 

The events around this notification clearly show that while state level regulatory bodies may be applying the law and rejecting approvals to environmental violators, the MoEF is motivated to grant these projects the required approvals. The rule making of the ministry in this case has neither withstood legal scrutiny, nor will it help to realise the mandate of environmental protection. Such centralised rule-making that fails to take a clear stance against environment violators has increased the risk to ecologies and communities. 

The authors are with the CPR-Namati Environment Justice Program. Views expressed are personal.