India: National Green Tribunal Order On Environmental Clearances For Real Estate Projects

Last Updated: 18 July 2018
Article by Sana Khan and Sonam Mhatre

The Environment Impact Assessment ("EIA") Notification 2006 was amended on 9th December 20161 (EIA Amendment, 2016) with a view to streamline the permissions for buildings and construction sector so that affordable housing can be provided to weaker sections in urban area under the scheme 'Housing for All by 2022'2. However, multiple applications were filed to challenge this amendment with the Principal bench of National Green Tribunal ("NGT")3 praying that the exemptions granted from Environmental Clearance for buildings and construction projects would be a huge retrograde step in the way to environmental conservation and would cause irreversible damage to the environment. On 8th December 20174 the Hon'ble NGT decided the applications through a single Order ("said Order") wherein it upheld the Principle of Non-regression and took recourse to the doctrine of severability to quash the following provisions of the EIA Amendment, 2016:

  1. Clause 14(8) which provided for constitution of Environment Cell to be set up by the State governments or local authorities for compliance and monitoring and to ensure environmental planning within their jurisdiction;
  2. Appendix-XVI pertaining to constitution and functioning of Environmental Cell;
  3. Clause 14 para 4 exempting residential buildings up to 1,50,000 square meters to seek Consent to Establish and Consent to Operate under Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 from the State Pollution Control Boards;

The Principle of Non-regression stipulates that 'environmental law should not be modified to the detriment of environmental protection'. Keeping in mind India's commitment to safeguarding environment, the NGT directed Ministry of Environment, Forest & Climate Change ("MOEF&CC") to reexamine the EIA Amendment, 2016 in the light of its Order. The following points summarize the ruling:

  1. The Hon'ble NGT noted that the Environmental Cell, primary duty of which is to protect the environment, would have to work in subordination to a State/local authority whose primary object is to permit development. Thus, possibility of conflicting interest arising in the functioning of the local authority and the Environmental Cell cannot be ruled out. It would also disturb the federal structure laid down under the Constitution of India. Therefore, the Hon'ble NGT quashed the provisions for formation of the Environmental Cell by the State government or local authorities.
  2. With reference to exemption of Consent to Establish and Consent to Order for certain residential buildings, the Hon'ble NGT noted that the MOEF&CC, a delegated authority under Environment (Protection) Act, 1986 cannot render provisions of Water Act, 1974 and Air Act, 1981 (both Central legislations) as inapplicable and take away powers of the Pollution Control Boards under the said Acts. Such legislation suffered from the vires of excessive legislation.
  3. The Hon'ble NGT observed that the EIA Amendment, 2016 ignored some essential features like source of water, source of raw material, urban ecology, provision of no development zone and construction face impacts. These aspects have a direct bearing on protection of environment and keeping in line with the Principle of Sustainable Development.

Pursuant to the said Order, the Environment Department, Government of Maharashtra raised query regarding amendments made prior to the EIA Amendment, 2016 and regarding appraisal of applications till further notification is issued by the MOEF&CC. The Law & Judiciary Department, Government of Maharashtra, in the wake of the said Order has opined that the State Expert Appraisal Committee ("SEAC") and State Environment Impact Assessment Authority ("SEIAA") are supposed to implement the EIA Notification, 2006 as it was before the EIA Amendment, 2016 and assume that Clause 14 (inserted by the EIA Amendment, 2016) is not at all inserted5.

In the aftermath of the said Order and the opinion given by Law & Judiciary Department, the SEAC and SEIAA along with Municipal Corporations, Municipal Councils and all Special Planning Authorities were directed not to process any permission to projects with built-up area between 20,000 sq. mtrs and 1,50,000 sq. mtrs by integrating the environmental clearance conditions as per the EIA Amendment, 2016 in the EIA Notification, 2006. Though the EIA Amendment, 2016 sought to ease and expedite the Environment Clearance process for real estate projects, it could not stand the scrutiny of law.  

Footnotes

1 http://www.moef.nic.in/sites/default/files/Building%20and%20Construction.pdf

2 http://www.mondaq.com/india/x/560852/Environmental+Law/Impact+Of+The+Amended+Environment+Impact+Assessment+Eia+Notification+2016

3 NGT Original Application No. 677 of 2016 Society for Protection of Environment & Biodiversity vs. Union of India and ors.

4 NGT Order in 2016 Society for Protection of Environment & Biodiversity vs. Union of India and ors. -  https://drive.google.com/file/d/1lRo51TM0EK8zqDC97C1oLbNNcm3t9Uzg/view

5 Excerpts from Government of Maharashtra Circular No. NGT-2017/CR-45/SEIAA dated 29th January 2018

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