First published on http://www.mylaw.net.
Published on: August 01,2011
In my earlier post on the Lafarge judgment (“Lafarge”) (T.N. Godavarman Thirumulpad v. Union of India, Interim Applications 1868, 2091, 2225 to 2227, 2380, 2568, and 2937 in W.P. No. 202 of 1995), I had examined the scope of judicial review as defined by the Bench. The other important aspect of the Lafarge judgement is the guidelines that the Court has laid down for future development projects that would use forest land. Decision makers within the Ministry of Environment and Forests (“the MOEF”) and the state forest departments are to be guided by these principles while considering whether to grant approval to a proposed project for the use of forest land.
This post summarises the principles laid down by the Supreme Court.
1. The “far-reaching” principles of the National Forest Policy, 1988 (“the NFP”), (including the articulation of the national goal that a minimum of one-third of the total land area of the country should be under forest cover) must necessarily govern the grant of permissions under Section 2 of the Forest Conservation Act, 1980 and should provide the road map for ecological conservation under theEnvironmental (Protection) Act, 1986 (“the EPA”). Till date, the NFP had merely been on paper and there was no mechanism available to implement it. However, the Court has now made it mandatory for decision-making bodies to consider the provisions of the NFA before granting project approvals.
2. The Court had directed that the MOEF appoint an independent regulator for ensuring implementation of the NFP while granting forest approvals. This regulator would have the powers of appraising projects, enforcing environmental conditions for approvals, and imposing penalties on polluters. From a theoretical perspective, this is an excellent decision, since the presence of an independent regulator should naturally make the decision-making process a more fair and efficient one. However, the powers of the regulator would need to be adequately clarified, so that the regulator has a clear mandate. There would also need to be clarity on the separation of executive and regulatory powers in relation to the grant of an approval.
The MOEF has stated that it has already initiated the process of appointment of the independentNational Environmental Appraisal and Monitoring Authority (“the NEAMA”), proposals for which have been circulated for inter-ministerial consultations.
What would also be interesting to note would be how the environmental regulator would interact with the newly established National Green Tribunal (“the NGT”) to deal with all civil cases where a substantial question related to the environment is involved or for implementation of the EPA and other environmental legislations. The NGT has the power to provide compensation and restitution of property. Will the NGT then become an appellate authority for the NEAMA or will they have separate realms of functioning?
3. The Court noted that reports of expert agencies were often contradictory or conflicting. As a result of this, government bodies often did not have accurate information in relation to the environmental impact of a project. To obviate these difficulties, the bench has directed that till such time as the regulator is put in place, the MOEF should prepare a panel of “Accredited Institutions”. Project proponents should obtain Environmental Impact Assessment Reports only from these accredited agencies. The MOEF should also institute a Rapid E.I.A. mechanism and that too on the terms of reference to be formulated by the MOEF.
4. The Court has stated that in all future cases, the project developers should comply with the Office Memorandum dated April 26, 2011 issued by the MOEF (titled “Procedure for consideration of proposals for the grant of environmental clearance under EIA Notification, 2006”), which involve forests. This Office Memorandum requires that all mining projects involving forests and non-mining projects that involve more than 40 hectares of forests should submit high-resolution satellite images of the proposed site along with land use and ecological date. The developer should also submit a certificate from a State Forest Officer in relation to the land use for the project and whether there is any use of forest land.
5. The Court has also dictated that in case of any doubt in relation to the nature of a land (that is, whether the land is forest or non-forest) the site should be inspected by the State Forest Departmentalong with the regional office of the MOEF to ascertain the status of the land. The inspecting officials would grant a certificate in this respect. What this should also mean is that once this certificate is granted, and if there is no evidence that the certificate was granted in an arbitrary manner, there should be no reopening of the status of the land at a later stage.
6. There are several directions given to the MOEF to expand its internal infrastructure to better facilitate inspection, monitoring, and appraisal of proposals, including the expansion of regional offices from six to ten; constitution of Regional Empowered Committee, under the Chairmanship of the Chief Conservator of Forest (Central) along with three non-official members to be selected from the eminent experts in forestry and allied disciplines; loading of the minutes of meetings of the Forest Advisory Committee andExpert Appraisal Committee as well as all forest clearances in the MOEF’s website. The MOEF has to prepare a comprehensive policy for inspection, verification, and monitoring and the overall procedure relating to the grant of forest clearances and identification of forests in consultation with the states.
7. The Court has also called for the creation and regular updating of a geographic information system(“GIS”) based decision support database, which will contain district-wise details of the location and boundary of each plot of land that may be defined as forest, the core, the buffer, and the eco-sensitive zone. The GIS should also have details of important migratory corridors for wildlife, the forestland diverted for non-forest purpose in the past in the district.
8. Appropriate safeguards in the environment clearance process have to be taken to eliminate chances of diversion of forest land as non-forest. The court directed that a flow chart depicting the tentative nature and manner of incorporating the proposed safeguards should be finalised after consultation with the State and UnionTerritory governments.
9. Public hearing would be a necessary requirement for the environment clearance process.
The Guidelines provide specific steps that need to be taken by project developers seeking forest land clearance for their projects. It does provide a certain degree of certainty to the developers. The MOEF needs to now come up with a comprehensive and exhaustive list of all directions and processes, which are easily accessible. This would not only make it easier to ascertain what exact steps would be required for obtaining these consents but would certainly improve compliance standards in relation to use of forest land use by industries in India.
I would like to thank Abhay Pratap Singh from National Law University, Jodhpur, who had completed an internship with PXV Law Partners for his help on this post.