The National Green Tribunal (NGT) has quashed the December 2016 notification issued by the Ministry of Environment and Climate Change (MoEF), whereby some provisions of Environment Impact Assessment Notification, 2006, that required prior Environmental Clearance (EC) for building and construction activities were diluted, saying that it would permit construction of huge buildings and apartments without strictly complying with the environmental norms.
The notification “should be declared as ultra vires and be quashed… The challenge to the Notification is on legal grounds as well as on other reasons that it will have an adverse impact on environment, ecology and natural resources. In fact, it is contended that it will also have serious repercussion on climate change. The Notification though claims to serve the social cause of providing housing for the poor but, in fact, the result of its enforcement would be contrary. It would permit construction of huge buildings and apartments without strictly complying with the environmental norms,” the Tribunal said.
The December notification was challenged by a group of petitioners on various grounds including the reason for the exemption was 'ease of doing responsible business' and the same cannot be a ground for exempting the application of environmental law. “In addition, the other ground i.e Housing for All by 2022 is an attempt to 'hide behind' the poor while actually benefiting the builder lobby. Most significantly, all the exemptions were ironically done by stating that the exclusion of the application of the environmental law was essential in order to improve the quality of the environment,” says Ritwick Datta, environment lawyer who had filed the application.
Under the existing law, all building and construction projects from 20,000 sqm require an environmental clearance under the EIA Notification, 2006. In addition, it requires Consent to Establish and Operate under the Air Act, 1981 and the Water Act, 1974. Moreover, any concerned person can approach the National Green Tribunal to challenge the Environmental Clearance or seek action for violation, he says.
In the strongly worded judgment, the Tribunal condemned this act of diluting environmental safeguards in the interest of ‘ease of doing responsible business’ under the garb of ‘housing for all’. It noted that "the said amendment notification is only a ploy to circumvent the provisions of environmental assessment under the EIA Notification, 2006 in the name of ‘ease of doing responsible business’ and there is no mechanism laid down under the amendment notification for evaluation, assessment or monitoring of the environmental impact of the building and construction activity. The construction industry consumes enormous resources and has a significant energy footprint; the sector emits 22 percent of India’s total annual carbon-dioxide emission.”
Last year, the government while promoting Housing for All by 2022, decided to simplify the process of procuring an environment clearance by notifying that all projects greater than 5000 sqm but less than 20,000 sqm could go in for a self-declaration that they are following green norms. Environment clearances take a long time to procure and are perhaps the biggest contributor to real estate project delays, often taking more than 18 months.
For smaller projects (less than 20,000 sqm) it has a "self-declaration" clause which will ensure issuance of permission from urban local bodies. For larger projects of over 20,000 sqm to less than 1.5 lakh sqm, the environmental clearance and building permissions will be given by urban local bodies simultaneously in an "integrated format."
Earlier, EC was mandatory for construction projects larger than 20,000 sqm under EIA notification 2006. It had to be procured from the state environment agency or State Level Environmental Impact Assessment Authority (SEIAA) following the amendment, the developer could take it from the local municipality or the authority at the time of applying for clearance of building plans.
The Tribunal noted that the exemption granted by the notification for residential buildings of size 1,50,000 sqm from the requirement of obtaining consent to establish and operate from the Pollution Control Boards was found to be “unsustainable” under the law since a subordinate legislation cannot take away the requirements imposed by another legislation. An authority cannot, in exercise of its subordinate legislation, exclude the operation of a substantive law that is the Water Act 1974 and Air Act 1981 enacted by the Parliament, it noted.
The Tribunal noted that the notification was issued without conducting proper study and research. There is nothing on record to suggest that the quality of the environment had increased warranting a dilution of conditions, the Tribunal said. It also found that the objections filed to the draft notification were not considered before issuing the final notification.
“The impugned Notification is unsustainable as on one hand it is not based on any study and on the other it ignores the recommendations made in the various studies conducted by the Ministry itself including Dr. Kasturirangan’s reports. The positive suggestions and recommendations made in these reports have been ignored. The Notification attempts to hide behind the poor for the benefit of the builders. It also lacks in providing for [the] requisite expertise of the members constituting the environmental cell in the interest of [the] environment. No, criteria or qualifications have been fixed for the Member of [the] environmental cell unlike the law in existence, which certainly would have adverse impacts as there will be massive construction activity causing serious environmental degradation.
The Tribunal also said that there was ambiguity and uncertainty over the constitution of the environment cell and its functions. It was also unclear about the qualifications that members of such a cell should possess.
While it decided to severe and quash the objectionable provisions in the notification, it decided to save the provisions that sought to decentralise regulations that were aimed at promoting housing for all and creating a single window mechanism. It also directed the ministry not to give effect to the provisions until further examination.
The December notification had also said that the application for the environment clearance will be processed by the newly created environment cells in the local authorities or development authorities with the help of accredited qualified building environment auditors. It had also revised the compliance reports conditions, saying that instead of filing it every six months, they could be filed in five years.
All state authorities had to ensure that these changes be made part of their bylaws on time for ease of doing business. Delhi Development Authority was the first to make these changes in their building bylaws.
Environment experts had said that while steps taken to simply the environment clearance process cuts down on time, these bylaws adopted by the state authorities are not as comprehensive or as stringent as that of the EIA.
“Reducing delay is good but exempting all projects from environment scrutiny is not. The degree of detail and scientific criteria that third-party ratings such as LEED, GRIHA etc have is missing in the local bylaws," they had said.
Until a proper environment cell is created in development authorities, it will make it easier for most real estate developers to bypass environmental scrutiny if the notification is allowed. The bylaws should be amended to include EIA requirements therein, except for the time-consuming survey and test requirements, they had said.
“As a result of the above, the bylaws amended by the DDA vide its Notification dated 22nd March 2016 can also not be given effect to, unless the Notification dated 9th December 2016 is amended in terms of this judgement,” the Tribunal said in its order.