India: Environment – Getting It Right

Last Updated: 26 November 2018
Article by Manu Nair

Introduction

The present article deals with the issues and concerns arising out of grant or non - grant of environmental clearances for projects in and around eco sensitive areas of the country. The battle between environmental protection and development is a complex issue for which there may not always be a perfect solution. Through this article the author endeavours to provide a solution oriented approach to address the thorny issues on this subject in the context of a recent case before the Supreme Court1.

Background /Issues

The environment issue in question pertains to the clearance / non clearance of a project (multi-storey residential complex) which was to come up near the backwaters in Kerala. The area in question fell within the jurisdiction of the Corporation of Cochin (the "Corporation"). The project proponent obtained the relevant building permit from the Corporation under the prevalent building rules and other necessary permissions, such as, NOC from the State Pollution Control Board and the Fire and Rescue Department and height clearance from the Indian Navy.

As far as the environment clearance is concerned, the Ministry of Environment and Forests (MoEF), which is the nodal authority for granting clearance, issued a Notification under the Environment Protection Act, 1986 (the "Act") which required all new projects to obtain prior environment clearance from the Central Government or the State Environment Impact Assessment Authority ("SEIAA") constituted by the Central government under the Act. The said Notification also provided, in Para 8 thereof 2, that the SEIAA would base its decision on the recommendations of the state or union territory level Expert Appraisal Committee ("EAC/SEAC") to be constituted in terms of the Notification.

The project in question was examined by the Central Expert Appraisal Committee ("CEAC") in the beginning and during such examination it was proposed that since some part of the project fell under the Coastal Regulation Zone ("CRZ"), the details of the project may be examined by the CRZ Committee of the Environment Ministry and a separate clearance be acquired for CRZ. At this juncture, it may be relevant to briefly understand the CRZ position in India as set out hereunder:

Under the Environment Protection Act, 1986 of India, a notification was issued in February 1991for regulation of activities in the coastal area by the MoEF. As per the notification, the coastal land up to 500m from the High Tide Line (HTL) and a stage of 100m along banks of creeks, estuaries, backwater and rivers subject to tidal fluctuations, is called the Coastal Regulation Zone(CRZ). CRZ along the country has been placed in four categories ie. CRZ 1 to 4.

Under the CRZ Notification of 1991, coastal areas have been classified as CRZ-1, CRZ-2, CRZ-3, and CRZ-4.

  • CRZ-1: These are ecologically sensitive areas these are essential in maintaining the ecosystem of the coast. They lie between low and high tide line. Exploration of natural gas and extraction of salt are permitted
  • CRZ-2: Areas which are developed up to the shoreline and fall within municipal limits wherein construction and building activity is possible
  • CRZ-3: This includes Rural and urban localities which fall outside the ambit of CRZ 1 and 2. Only certain activities related to agriculture even some public facilities are allowed in this zone.
  • CRZ-4: This lies in the aquatic area up to territorial limits. Fishing and allied activities are permitted in this zone. Solid waste should be let off in this zone.

The Ministry has an approved list of authorized agencies competent to issue CRZ clearance.

The project proponent accordingly made an application to one of the authorized agencies, which in turn made a positive recommendation that the land was situated in a CRZ- 2 area (Areas which are developed up to the shoreline and fall within municipal limits wherein construction and building activity is possible) and that no area was in CRZ- 1 (Ecologically sensitive areas, essential in maintaining ecosystem of the coast. These lie between the low tide line and high tide line wherein only activities pertaining to exploration of natural gas and extraction of salt is permitted.), or close to it. Post the said clearance, the project proponent started construction activity and things were going smoothly till the time the Kerala Coastal Zone Management Authority ("KCZMA") intervened, seeking an explanation for having started construction without obtaining the necessary permission / approval / clearance from it. However, subsequently the same authority (KCZMA) decided to recommend the project proposal to the Ministry of Environment and Forests.

The matter did not end there. Pursuant to a further site visit by the KCZMA, there were adverse comments / recommendations made by it on certain environmental aspects alleged to have been violated by the project proponent. However, interestingly, even whilst noting that there were procedural violations committed by the proponent, it recommended imposition of penalty alone and nothing more.

It may be pertinent to point out that the authorised agency for giving CRZ clearance which had earlier given a positive recommendation to the project proponent also did a turn around and submitted adverse reports on certain environmental violations carried out by the proponent.

The matter thereafter proceeded to court on the basis of a petition filed in the High Court by one of the residents of the area where the project was to come up, seeking to prohibit the project proponent from carrying out further construction. Interestingly, the said petition was filed by the allegedly affected resident nearly three years after the commencement of construction. It may be noted that the area in question where the project was to come up was already well developed with many similar multi-storey apartments.

During the pendency of the court proceedings, the SEIAA issued an integrated CRZ-Environment clearance to the project. Despite this, the High court in its wisdom set aside the said clearance and directed demolition of the project in question. The High Court ruling was challenged before the Division Bench of the High Court by the project proponent. During the hearing before the Division Bench, the Environment Ministry was asked by the court to explain its stand on the issue of the project. The Environment Ministry in its affidavit clearly stated that the project proponent had adhered to all the conditions laid down by SEIAA and had not violated any of the provisions and that the construction was technically as per provisions of the notification of CRZ and the Environment Impact Assessment. Yet, the Division Bench held that the project proponent had violated the environmental conditions and that the construction was illegal. It however set aside the direction for demolition and instead directed the project proponent to deposit a monetary sum as penalty/fine.

KCZMA as well as the project proponent filed separate appeals before the Supreme Court.

The Supreme Court ultimately set aside the findings of alleged violations committed by the project proponent on various grounds. One of the most important grounds on which the Supreme Court overturned the High Court judgment was on the issue regarding the inconsistencies and flip-flops of the authorities/regulators in dealing with the environmental issues. The said inconsistencies and flip-flops were most exemplified by the two affidavits filed by the Environment Ministry, both of which were in complete variance with each other. The first affidavit affirmed the appraisal done by the SEIAA and the second took a complete u- turn by stating that both the CRZ as well as the Environment notification had been violated and the project had come up without obtaining prior clearance.

Analysis of Issues

In view of the abovementioned background and facts a serious question arises, namely, accountability in respect of inconsistencies and flip flops played by the regulators in dealing with the environmental issues. This question deserves to be answered by laying down clear guidelines which the regulatory authorities and the project proponents can follow to ensure there is no confusion in understanding and following the law. While development is necessary, it must also be in sync with the preservation of the environment and must ensure that environmental issues are addressed. Therefore, greater clarity in the guidelines, rules and regulations will go a long way in ensuring that the project proponents / big developers are aware of all the relevant rules and regulations to be complied with before embarking on projects such as the one in the present case.

The major area of concern in the present case was the complete lack of clarity on the part of the authorities concerned. It was incumbent upon each authority / agency examining the proposal of the proponent to have given a clear and unambiguous report or finding at the first instance when it was examining the project, so that the project proponent was under no illusion or confusion with regard to the legal status of the same. However, each report was at variance with the other, thereby creating a complete sense of uncertainty and confusion in the minds of all concerned.

It is therefore critical that in any matter concerning environmentally sensitive issues, the first and foremost requirement should be that the law and the regulations are clearly spelt out so that there is no ambiguity whatsoever nor any scope for interpretation of the said regulations. In other words, the endeavour should be to ensure that for each and every step the laws/regulations should be set out in black and white.

Insofar as the jurisprudence with regard to the environmental issues is concerned, the law as set out by the Supreme Court is very clear. It has clearly held that the practice of regularizing unauthorised construction in areas where admittedly there is a clear prohibition is unacceptable, especially when such construction is sought to be effected in CRZ areas3. The Supreme Court has taken a very strict approach to interpretations of the CRZ notification and has time and again held that the said notification has been issued in the interest of protecting environment and ecology in the coastal areas and construction raised in violation of such regulations cannot be condoned4.

The judgment rendered by the Supreme court in the present case in its conclusion has rightly stressed on the fact that:

49. We would also like to emphasise that there has to be undoubtedly greater clarity on the processes and a better understanding between various authorities so that developers are not left in the lurch — violators have to be punished but it cannot be that the authorities continue to do a flip-flop-flip putting the large investments at stake in a jeopardy. This is what appears to have happened in the present case.

50. We also make it clear that in the future, wherever permissions are required to come and are to be obtained before commencement of construction, it would be no answer that activity can be carried on without obtaining the permissions. Simultaneously, the permissions itself are envisaged in a time-bound schedule and not through improvement of cases by authorities running into years. Thus, from the inception itself, there should be clarity on what is permissible and what is not.

In view of what the Supreme Court has stated hereinabove, it is incumbent upon all the regulatory authorities dealing with the environment to ensure that all issues pertaining to clearance and approvals are addressed not only in a time bound manner but also with clarity at each step, especially when it comes to either rejecting or granting permission for projects.

Suggestions /Way forward

  1. It would be worthwhile to re-examine from time to time, the competence of the various authorised agencies identified by the Environment Ministry to recommend clearance of projects, inasmuch as the Ministry depends solely on their recommendations while scrutinizing a project and giving its go-ahead.
  2. It would also be in the interest of all to have a greater scrutiny to ensure that petitions which are filed in various courts by so called public spirited persons or environmentalist groups who have a so called interest, are bona fide and are not filed for publicity or as a front for corporate rivalry. Before a court or authority launches into a full blown investigation of the allegations, it should first satisfy itself about the bona fides of the person/group filing the complaint. In case it is not satisfied on the genuineness of the complainants / petitioners it should impose huge costs on the complainant.
  3. The Environment Ministry should also set down clear parameters or criteria on the basis of which there is a proper scientific way of examining evidence (for example, land use maps etc.), given that technology has changed over the years and there is a large amount of scientific data available for examination.
  4. Although a time consuming exercise, it would be useful if the authorities concerned, after examining a particular proposal of a project proponent and after having found it fit for recommendation, list out and continuously engage with the project proponent on the various compliances to be done post the recommendations. This will go a long way in ensuring that even post recommendation of a project there is continuous monitoring by the authorities on each and every aspect to ensure that the project is environment compliant for all times to come.

Footnotes

1. The Secretary, Kerala State Coastal Management Authority vs. DLF Universal Limited (2018) 2 SCC 203

2. "8. Grant or rejection of prior environmental clearance (EC).—(i) The Regulatory Authority shall consider the recommendations of the EAC or SEAC concerned and convey its decision to the applicant within forty-five days of the receipt of the recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned or in other words within one hundred and five days of the receipt of the final Environment Impact Assessment Report, and where Environmental Impact Assessment is not required, within one hundred and five days of the receipt of the complete application with requisite documents, except as provided below.

(ii)..........................................

(iii) In the event that the decision of the Regulatory Authority is not communicated to the applicant within the period specified in sub-paras (i) or (ii) above, as applicable, the applicant may proceed as if the environment clearance sought for has been granted or denied by the Regulatory Authority in terms of the final recommendations of the Expert Appraisal Committee or State Level Expert Appraisal Committee concerned."

3. Anil Hoble vs. Kashinath Jairam Shetye and Ors. (2016) 10 SCC 701

4. Piedade Filomena Gonsalves vs. State of Goa and Ors. (2004) 3 SCC 445

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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