Syllabus: GS3/Environment
Context
- The Supreme Court quashed a 2021 Office Memorandum (OM) granting ex post facto environmental clearances to infrastructure projects.
About
- The 2021 Office Memorandum (OM) allowed retrospective approval for projects that had already commenced construction without environment clearances (ECs).
- The court held that ex-post facto ECs cannot be created through an OM, but recognised that the government may, in exceptional circumstances and in public interest, provide such a mechanism through a statutory notification issued under delegated legislative powers.
- The judgment has sought to strike a middle path in its evolving environmental jurisprudence, distinguishing between the source of executive power and the limits of regularisation.
Office Memorandum and Statutory Notification
- An OM is an administrative instruction issued by a ministry or department and does not have the force of law.
- A statutory notification, by contrast, is issued under authority granted by a statute — the Environment (Protection) Act, 1986, in this case — and notified in the Gazette.
Environment Impact Assessment (EIA)
- EIA can be defined as the study to predict the effect of a proposed activity/project on the environment.
- EIA systematically examines both beneficial and adverse consequences of the project and ensures that these effects are taken into account during project design.
- It also proposes measures to mitigate adverse effects.
- Significance: Protection of environment, optimum utilisation of resources and saving of time and cost of the project.
- It also lessens conflicts by promoting community participation, informing decision makers, and helping lay the base for environmentally sound projects.
EIA in India
- 1994: The Union Ministry of Environment and Forests (MEF), under the Environmental (Protection) Act 1986, made Environmental Clearance (EC) mandatory.
- EIA 2006 Regime: It is the governing legal instrument to grant green clearance for establishment or expansion of an industry on the basis of the expected environmental impact of the project.
- It made it mandatory for various projects such as mining, thermal power plants, river valley, infrastructure and industries to get environment clearance.
- However, unlike the EIA Notification of 1994, the new legislation has put the onus of clearing projects on the state government depending on the size/capacity of the project.
Legal and Institutional Framework
- EIA Notifications: Issued by the Ministry of Environment, Forest and Climate Change (MoEFCC) using powers under the Environmental (Protection) Act 1986.
- Categorisation of Projects
- Category A: National-level projects with significant impacts (e.g., large dams, major highways).
- Category B1: Moderately sized projects with regional impact.
- Category B2: Small-scale projects with less impact.
- Institutional Authorities:
- Central Expert Appraisal Committee (EAC): For Category A projects (national level).
- State Expert Appraisal Committees (SEACs): For Category B projects (state level).
- State Environment Impact Assessment Authorities (SEIAAs): Grant environmental clearance at state level.
Concerns
- One positive of the 2006 EIA notification is its dynamism to accommodate changes in its provisions and processes as per the requirement of the changing times.
- However, this characteristic of the legal instrument seems to have been exploited.
- Over 110 changes were made in just 5 years, most of them without public consultation.
- This flexibility has been misused and industries get approvals, even if they pollute or harm the environment.
Best Practices to Improve EIA Process
- Create an independent EIA authority to avoid conflict of interest.
- Strengthen public consultation, especially in local languages.
- Ensure scientific and transparent baseline data.
- Regularly update the list of exempted projects based on environmental concerns.
Source: TH
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