Published in the Current Practice Newsletter of the International Bar Association Section on Energy, Environment, Natural Resources and Infrastructure Law. Vol 8 No. 1, September 2012.
Deepto Roy, PXV Law Partners, Delhi [email@example.com]
Shivani Chugh, PXV Law Partners, Delhi [firstname.lastname@example.org]
The environmental clearance process for infrastructure projects in India has been the subject of significant debate, particularly on how uncertainty in the granting process and litigation risk affects the implementation period and costs of the project. For a country which is struggling with a severe infrastructure shortage and where there are significant slips between the cup of intiated projects and the lip of commercial operation, this threatens to further disrupt the ability to improve infrastructure rapidly and effectively. Further, project developers have not helped matters by cutting corners and not complying with procedure while obtaining clearances, which exposes themselves to litigation.
The legal regime in relation to the environmental clearance process in India is convulated, with clearances required under multiple legislations, including the Air (Prevention and Control of Pollution) Act, 1981; the Water (Prevention and Control of Pollution) Act, 1974; the Environmental Protection Act, 1986 and the Forest Conservation Act, 1980, and a host of regulatory authorities (including state and central governmental authorities) who are resposible for issuing these clearances. In fact, to make things simpler, the Supreme Court of India, in a 2011 judgement, has strongly recommended the setting up of an independent regulator for the environmental sector. [i]
A new player has now been added to the increasing volume of environmental litigation. The National Green Tribunal (“NGT“) was set up under the National Green Tribunal Act, 2010 (“NGT Act“), but the administrative formalities were completed in 2011 and the NGT started proceedngs from that point. It replaced the National Environment Appellate Authority, a previous body with a more limited jurisidiction which was largely considered ineffectual. The NGT, with each judicial bench comprised of a judicial as well as a technical member, is contempleted to be a “multi-faceted Environmental Court with judicial and technical/specific inputs.”[ii]
The recent judgements of the NGT reflect trends that are likely to have a significant impact on upcoming infrastructure projects in India
Jurisdiction of the National Green Tribunal
The Preamble to the NGT Act states that the purpose of the NGT is the “effective and expeditious disposal” of cases relating to environmental protection, forest conservation and natural resource conservattion and the enforcement of legal rights related to the environment. Section 14(1) states that:
“The Tribunal shall have jurisdcition over all civil cases where a substantial question relating to environment (including enforcement of any legal right relating to environment) is involved and such questions arise out of the implementation of the enactments specified in Schedule I.”
Schedule I incorporates the seven key legislations on the environment.
Section 16 describes locus for the purpose of the NGT Act. “Any person aggrieved” by an order or decision made in relation to the various environmental legislations, including a decision granting or refusing an environmental clearance, can initiate proceedings before the NGT. Section 18(2) of the NGT Act gives a list of people who can prefer an application for relief under the NGT Act. This includes persons who have sustained an injury, persons whose property has been destroyed and relatives of a person who has died from an environmental damage.
The NGT Act also defines a “substantial question of law relating to environment”, which is the touchstone of the NGT’s jurisdiction. This includes (A) a direct violation of an environmental obligation which affects the community at large (and not an individual or group of individuals); (B) the gravity of damage to the environment or property is substantial; or (C) the damage to public is broadly measurable. The intention seems to be to limit the jurisdiciton of the NGT to matters which impact the society as a whole, and not individual instances of breach of environmental law, for which ordinary civil and crimial remedies were deemed to be satisfied.
A person aggrieved and the question of locus
Some of the first decisions of the NGT relate to the standing of a person who can challenge an environmental clearance.[iii] In Vimal Bhai v. Ministry of Environment and Forests,[iv] a case where a forest clearance granted to a hydro power project was challenged, the respondents sought a narrow defintion to “person aggrieved” under Section 16 of the NGT Act, and argued that the environmental group which had initiated the proceeding was not affected by the project since none of them resided in the project area. The NGT, however, held that a “person aggrieved” under Section 16 does not signify a person who is injured or affected, directly or indirectly by the Project, but includes any person without a malafide intention. The NGT drew a distinction between Section 18 and Section 16 and has held that while under Section 18 a person injured can seek relief, under Section 16 any person may approach the NGT. The relevant portion of this decision of the NGT is quoted below.
“The only exception to be made for treating an appeal/application as not maintainable could be a matter which falls beyond the seven (7) Acts as notified in Schedule I of the NGT Act, 2010 and in case of malafide and vexatious litigation brought before this tribunal and not otherwise.”
The significant implication of this is that it shifts the burden on respondents to prove that the person initiating the proceedings does not have locus rather than the other way around. So long as no malafide can be proved, a petition will be maintaible, since every person will be considered as having an inherent right to environment. In this the NGT seems to follow the constitutional courts in India, who have long recognized that the constitutionally protected fundamental right to life included the right to a healthy environment.[v] The important distinction is that the constitutional courts generally limit themselves to breach of rights and violation of procedural norms, the NGT’s power to examine issues is significantly wider, and extends to review of the technical parameters of an environmental clearances. Having given an inordinately wide meaning to “aggrieved persons” the NGT exposes projects to increased risk, since any person can challenge an environmental clearance granted to a project, without having to show any nexus to the project.
Effect of Serious Procedural Lapses
The environmental impact assessment for projects is outlined in the Environmental Impact Assessment Notification, 2006 (“EIA Notification”). The procedure is primarily divided into four stages, i.e. screening, scoping, public consultation and appraisal. Any serious procedural lapse can lead to questioning of the entire process for granting an environmental clearance. The NGT in one of its decision has observed that “grant of environmental clearance is basically a procedural law and any procedural lapses such as collection and evaluation of basic data which may lead to threat to the environment, ecology and conservation of natural resources, shall have to be taken seriously by this tribunal while dealing with disputes coming before it“.[vi]
In fact one of the most common grounds for challenges to environmental clearances before the NGT is based on breach of procedural requirements of the public consultation process. Public consultation has been held to be a form of participatory justice where the local people likely to be affected by the project are given an opportunity to raise their grievances in relation to a given project.[vii] The EIA Notification lays down elaborate requirements in relaion to public consultation. This includes (a) giving wide spread publicity to the EIA Report and making available a summary of the EIA Report in English and a local language; (b) organising a public hearing at the project site or in its close proximity; (c) issuing notices for the public hearing and publishing them in at least two newspapers, (d) supervision of the public hearing proceedings by the District Magistrate or the Additional District Magistrate along with a member of the pollution control board, (d) videotaping the proceedings, (e) recording the minutes of the public hearing meeting and reading out and explaining the minutes to the public at the end of the meeting, (f) signing of the agreed minutes of the meeting by the District magistrate or his representative (g) preparing a statement of issues raised by the public and the responses of the project proponent in English and a local language, and (h) displaying the public hearing minutes at various public offices in the relevant district.
One of the important cases in this regard relates to the environmental clearance granted to Jindal Steel and Power Limited (“JSPL”) for its Gare- IV/6 Coal Mining Project and Pithead Coal Washery, located at Raigarh District in Chhattisgarh.[viii] The NGT ordered the cancellation of the environmental clearance in this case since there were gross procedural irregularities in the conduct of the public hearing. The NGT held the publice hearing to be a “farce” and ruled that:
“This is not a case where there are a few ignorable procedural lapses in conducting the public hearing. This is a case of a mockery of public hearing, which is one of the essential parts of the decision-making process, in the grant of EC. This is a classic example of violation of the rules and the principles of natural justice to its brim. Therefore, we consider it appropriate to declare that the public hearing conducted in this case is nullity in the eye of law and therefore is invalid.”
However, the procedure undertaken for conducting public hearing is challenged, an analysis of the decisions of the NGT reflects that the allegations in this regard are not always pivotal in determining the fate of the environmental clearance. The NGT in certain cases has held that unless there the procedural lapse causes obvious prejudice, an environmental clearance need not be set aside.[ix]
Nuclear Radiation analysis for thermal power projects
In the case of Krishi Vigyan Arogya Sanstha v. MoEF,[x] the NGT in directed the MoEF to include in the terms of reference of all future thermal power projects, a requirement that the project proponents should submit details of the nuclear radioactivity levels of the coal proposed to be used in the project. The MoEF has been directed to ask the Department of Atomic Energy to prescribe national standards for nuclear radiation in residential, industrial and ecologically sensitive areas of the country.
There is no doubt that the NGT will play a significant role in the development of environmental jurisprudence in India. Its recent judgements points to two important trends: (i) the liberal interpretation of locus standi, which allows almost any person to intiate proceedings against a clearance granted to a project; and (ii) a conclusion that serous procedural irregularities in the environmental clearance process. The NGT has also shown that with a technical member, it would also require additional technical studies if it deems such a requirement necessary.
[i] Lafarge Umiam Mining Pvt. Ltd, T. N. Godavarman v. Union of India, Writ Petition (C) N0. 202 of 2005, Judgement dated July 6, 2011.
[ii] The Supreme Court of India had been emphasizing on the requirement of an environmental court in several judgements. The quote is from A.P. Pollution Control Board v. M.V. Nayadu, 1999 (2) SCC 718.
[iii] Vimal Bhai and Ors v. Ministry of Environment and Forests & Ors, Appeal No. 5 of 2011, Order dated 14 December 2011 and Jaya Prakash Dabral and Anr. v. Ministry of Environment and Forests and Ors, Application No. 12 of 2011 Order dated 14 December 2011.
[iv] Vimal Bhai and Ors v. Ministry of Environment and Forests & Ors, Appeal No. 5 of 2011, Order dated 14 December 2011.
[v] Vellore Citizen’s Welfare Forum v. Union of India, AIR 1996 SC 2715; Indian Council of Enviro-Legal Action v Union of India, AIR 1996 SC 1069.
[vi] Krishi Vigyan Arogya Sanstha and Ors. v. MoEF and Ors., Appeal No. 7 of 2011(T) order dated 20 September, 2011
[vii] Samarth Trust v. UOI, Delhi High Court, Writ Petition (Civil) No. 9317 of 2009, order dated 28 May, 2010
[viii] Adivasi Majdoor Kisan Ekta Sangthan & Others v. Ministry of Environment and Forests, Appeal No. 3/2011 (T) (NEAA No. 26 of 2009), order dated 20 April, 2012.
[ix] Krishi Vigyan Arogya Sanstha and Ors. v. MoEF and Ors., Appeal No. 7 of 2011(T) order dated 20 September, 2011.