Environment Ministry's new green norms not good for EIA regime

Under pressure from NGT, the Environment Ministry brought out a new set of green norms.

Environment Ministry's new green norms not good for EIA regime

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• The story: The latest guidelines from the Union Ministry for Environment, Forest and Climate Change (MoEF&CC) to prevent violations of green norms are being seen by experts as another attempt to weaken the Environment Impact Assessment (EIA) regime. This SOP came in response to NGT's orders, which was worried over large-scale violations.
• NGT in picture: The National Green Tribunal (NGT) had asked the ministry to formulate a standard operating procedure (SOP), keeping the ‘polluter-pays’ principle and the ‘principle of proportionality’ in mind. The green bench was concerned by continuous violation of environmental norms by infrastructure and industrial projects.  
• What SOP says: The environment ministry’s office memorandum (OM) dated July 7, 2021, empowers regulatory institutions at both central and state level:

1. To identify and report cases of violation
2. To take action against violators in terms of closure or demolition of a project
3. To levy penalty on them that is akin to the scale of the project

• The EIA process stood weakened over the years, with the final nail in the coffin being the introduction of draft EIA Notification, 2020 that received a lot of flak from civil society, academicians and environmentalists. Consequent to the public outrage, the draft is under scrutiny. Sections of that draft EIA is now being pushed as OMs on the pretext of scrutiny.
• The overall scenario: NGT had come across complaints over many years where projects were completed without grant of prior environmental clearance (EC) and the State Environment Impact Assessment Authority (SEIAA) failed to abide by the “rule of law” requiring “demolition” or “payment of assessed compensation” from the project proponent.

1. The following case scenarios will be categorised as ‘Violation’: First, on-site construction or installation or excavation without obtaining EC; Second, expanding the production capacity and / or project area beyond the limit specified in the existing EC letter; and Third, changing scope of the project such as modification in product/s without prior approval from the ministry or SEIAA.
2. ‘Non compliance’ refers to not complying with the terms and conditions prescribed in the EC letter of the project awarded by the MoEF&CC or SEIAA.
3. Identification of violation cases and their reporting - Clause 13 of the OM includes the provision to identify, examine and appraise violation projects, to refrain them from causing further environmental damage and also to compensate for causing damage to the environment. Now, the Central Pollution Control Board (CPCB), state pollution control board (SPCB) and union territory Pollution Control Committee (UTPCC) are directed to identify cases of violation under their respective jurisdiction and report it to MOEF&CC in the case of Category A projects and to the SEIAA in case of Category B projects for further action.
4. SPCBs and UTPCCs have also been directed to not issue or renew Consent to Operate (CTO) to entities that do not have prior EC. The violation can also be reported suo motu by the proponent itself. The OM includes an additional provision stating “The CPCB, SPCBs and UTPCCs shall expeditiously examine the references received from the public and others in relation to violation and take necessary actions”.
5. This provision was missing in the draft EIA 2020 notification and has caused a huge outcry. Demand was that the public be allowed to report violations.
6. The current OM has included this provision. But it has not defined what references could be submitted for the consideration of authorities. There is also no mechanism elaborated upon how these complaints are to be registered. There is also no established procedure to ensure that the complaints made against the violator are not dismissed without hearing. This ambiguity in the memorandum leaves scope for a less transparent redressal mechanism.

• Handling of violation cases: Clause 11 of the OM defines three different actions to be taken for the violation projects depending upon their EC status. In case the project has not obtained EC, it will be ordered to close its operations. If the project has undergone expansion without obtaining EC for the expanded portion, it will be ordered to revert the activity / production to the limit granted in the existing EC. There might be projects which do not require EC according to their earlier production. But an EC is required after expansion. Such projects will be ordered to restrict the production / activity where EC was not required. For all these projects, actions will be initiated according to the Environment Protection Act, 1986. The problem is that all the three actions mentioned above for projects will be temporary and will be in effect till those projects do not get the required EC.
• Making violators liable: The detailed mechanism laid out in the current OM to allow operation of permissible and sustainable projects is nothing new and is exactly the same as provided in draft EIA notification, 2020. But the OM misses out on providing any system to demand remediation and restoration of environmental damage from the projects which will be directed permanent closure or demolition. Although these projects will not be allowed to operate further, the violator should be made liable.

1. Penalty on violating cases - To strengthen deterrence, clause 12 of the OM entitles the regulatory authorities to levy penalties on the proponent, in addition to the bank guarantee. The penalties were bifurcated for two kinds of projects — greenfield and brownfield.
2. For greenfield projects where operation have not commenced, the penalty is one per cent of the total project cost incurred upto the date of filling of application alongwith EIA / EMP report. For greenfield project where operation have commenced, the penalty is one per cent of the total project cost incurred upto the date of filling of application alongwith EIA / EMP report plus 0.25 per cent of total turnover.
3. But the penalties on both project cost and turnover will be halved if the proponent suo motu reports the violation. The penalties suggested in the office memorandum could be termed as legitimating non-compliance. First, it is beyond logic as to how a Rs 100 crore company is not aware of  environmental rules and regulations. Second, the penalty is meagre. For example: A Rs 1 crore penalty to be levied on a Rs 100 crore greenfield project will also be reduced to just Rs 50,00,000 if reported first by the proponent. It will never act as deterrence for violation.
4. In March 2017, the MoEF&CC issued a notification that laid down procedures for appraisal of violation cases. The projects were granted a window of six months to be regulated within the existing environmental regime stretching from March 2017 to September 2017, further extended by another six months extending from March 2018 to September, 2018. It was a one-time push for regularising existing violations. The present OM, instead of acting as a deterrent for violators, is instead building on the notion that violations can be course corrected by paying penalties.

• Summary: Looking at the plethora of violation cases that the ministry / SEIAA are swamped with today, it is imperative to develop a mechanism where we do not compromise the existing environmental regulations and adopt a ‘zero tolerance for violation’ stance.

 

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