11 Jan Year in review 2020: environmental law
No Green Light on granting ex post facto Environmental Clearances to industries
- The Ministry of Environment and Forest issued a notification dated 27th of January 1994 on the Environment Impact Assessment of Development Projects that regulated the expansion of then existing development projects and the creation of new ones. The aim of the notification is to ensure environmental clearances (EC) are provided only to development projects that fulfill certain criteria pertaining to preservation of the environment.
- A circular from the Ministry of Environment and Forest was issued on the 14th of May 2002 that extended the period for acquiring ECs to 31st of March 2003 and provided procedure for ex post facto ECs that could be granted to projects that had defaulted from obtaining an EC before the prior requisite deadline. The units seeking ECs under the circular would have had to provide funds to the towards eco development or community development projects in India.
- In the case of Alembic Pharmaceuticals v. Rohit Prajapati, four industries were aggrieved by the Western Zonal Bench of the National Green Tribunal striking down the circular of 14th May 2002 and ordering the cessation of the units that had received clearances post through the circular, which pushed the case to the Supreme Court of India.
- The circular in substance allowed units that had not gone through the scrutiny of the procedure laid down by the EIA Notification, to be given the green light by the Ministry of Environment and Forest and function normally even though they did not adhere to the original timeline of the law.
- The Supreme Court saw this as a direct violation of the spirit of the original notification that was mandated by section 3(1) of the Environment Protection Act of 1986. The circular acted to the detriment of the environment by given a pass to units that would have been polluting the environment, unchecked. Thusly the Hon’ble bench consisting of Justice DY Chandrachud and Justice Ajay Rastogi reaffirmed the order of the NGT, quashing the circular but set aside the part of the order that banned the units from functioning, imposing a fine of 10 Crores on each of the industries involved.
- Although this can be seen as a win for the preservation of the environment, due to the actions of the industries and the government combined, unchecked pollution continued for years and even after the intervention of the courts, the industries went mostly unscathed for their transgressions. Even though a principle has been laid down, damage done cannot be resolved by the courts alone, and for posterity it is only another environmental hassle that would need to be tended to.
Environmental Clearances for National Highways
- For the purposes of building transport infrastructure for freight and passenger movement the Bharatmala Pariyojna Project was conceived. It is an umbrella program for the development of highways in the country. A notification declaring stretches of land being declared as parts of the National Highway project was issued under section 2(2) of the National Highways Act, 1956 and consequently, a notification was issued under Section 3A(1) of the Act, specifying the lands proposed for developing the highways, to be acquired.
- Writ petitions and Public Interest Litigations were filed, objecting to the notifications, stressing on the fact that prior environmental clearances were required before the government could declare that those stretches of land are required for the national highway project. This culminated to a High Court case which later went to the Supreme Court.
- Section 3A of the Act to Section 3J provides the essential procedure that needs to be followed by the Government in order to declare and acquire land for the purposes of building, maintaining, managing, or operating of a national highway. Section 3A talks about the notification that would simply declare the intention of the Government to acquire a piece of land. Section 3B is regarding surveying the land. Section 3C is about hearing objections with the project and Section 3D gives the authority to declare acquisition.
- The Madras High Court was of the opinion that an environmental clearance would be required prior to the notification under Section 3A, thereby it quashed the notification made by the Government.
- The Supreme Court did not agree with that opinion and stated that it would not be necessary for the Government to produce an environmental clearance at the stage of Section 3A although after the declaring the intention, the Government would have to work towards obtaining a clearance before a notification is issued under Section 3D. Since the notification under Section 3D for acquiring the land would have to be within one year of issuing the notification under 3A, the court went with the interpretation it took in Karnataka Industrial Areas Development Board v. C. Kenchappa, wherein the time taken to produce an environmental clearance would be excluded from that one year.
- There is a delicate balance to be struck between development and protecting the environment. With a greater population industrialisation, infrastructure projects cannot be put on the side lines, but that can also not mean that the environment is pushed to the brink of collapse. This interpretation of the law strikes that very necessary balance by providing intervention of environmental protection laws at the right stage of the procedure.
The Curious Case of Paddy and Pollution
- The phenomenon of wearing masks in public is not a foreign affair for the residents of Delhi. Although the issue of the Delhi Pollution was put on the side lines in 2020 owing to the pandemic, it persists and even got worse compared to previous years.
- It is well known that a large portion of the air pollution is due to stubble burning in states like Punjab and Haryana. The particulate from this activity is then carried over to Delhi and other parts of North India.
- Paddy is one of the main crops that is grown in Punjab and Haryana, this is largely due to water and power subsidies along with minimum support prices that indirectly push farmers to grow the crop. Since it is a crop that has a very high irrigation requirement, the ground water resources of the states were depleting without any checks.
- Legislation was introduced in the two states that created restrictions on when the farmer may begin to sow paddy. This pushed the timeline of the harvest season of rice in the states to an extent that in order to get the fields ready for the rabi, or winter season of sowing, farmers were forced to burn the crop residue. This was seen as the fastest method to get the fields ready.
- Several attempts have been made by the Delhi Government to curb this issue, including using water sprinklers to reduce dispersal of surface dust, odd even system of vehicle usage, transplanting trees, imposition of fines for violation of environmental rules etc. But the issue of stubble burning has not received a concrete addressal.
- In the on-going case regarding Delhi Pollution in the Supreme Court, similar guidelines have been reiterated and mandated by the Hon’ble court. Even though stubble burning has been addressed in the guidelines, it does not mention the root cause of why stubble burning takes place, instead has provided alternatives as to what can be done with the residue and how the government can prevent residue burning.
- The focus of the government, along with that of the Courts has always been to the symptoms of an issue when it comes to air pollution in the country’s capital.
- For change in 2021 and further on, there is a need to address the subsoil water issues in the states of Punjab and Haryana. That would mean a shift from paddy to less water intensive crops that would ensure that water intake is limited and enough time is given to farmers to prepare the land for the next season. This would ensure that farmers are forced to burn residue and pollute the air.