The EIA Notification 2006 in Outline

The four stages

Stage 1, screening. For Category B only. The State committee decides whether an assessment report is required, sorting the project into B1 or B2.

Stage 2, scoping. The appraisal committee determines the terms of reference for the assessment, addressing the relevant environmental concerns of the particular project, on the basis of the application, the site and the information furnished.

Stage 3, public consultation. Two components: a public hearing at or near the site, conducted by the State Pollution Control Board, and written responses invited from other concerned persons. Certain categories are exempted, and the exemptions are a standing subject of criticism.

Stage 4, appraisal. The committee scrutinises the final report, the outcome of the public consultation and the other material, and makes a recommendation to the regulatory authority, which grants or rejects the clearance with reasons.

What a clearance contains

A grant is not a bare permission. It carries specific conditions addressed to the impacts identified, general conditions applicable to the class of project, a validity period, and a compliance and reporting obligation, with monitoring by the regional offices of the Ministry or by the State authority.

The two failures the Supreme Court has corrected

Non-disclosure in the assessment. In Hanuman Laxman Aroskar v. Union of India the Court held that an assessment which does not disclose material facts vitiates the clearance built on it, that the expert appraisal committee must apply its mind to the actual ecological character of the site, and that the process is due diligence rather than a formality.

Clearance after the event.

Facts. Alembic Pharmaceuticals Ltd v. Rohit Prajapati, AIRONLINE 2020 SC 445, concerned pharmaceutical and bulk drug units at Ankleshwar in Gujarat which had been set up and had begun production before applying for environmental clearance, and had obtained clearance under a circular of the Ministry dated 14 May 2002 which envisaged the grant of ex post facto clearances. The National Green Tribunal had held that circular to be contrary to law.

Held. The concept of an ex post facto environmental clearance is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the environmental impact assessment notification, because prior clearance is what allows the environmental consequences of a project to be weighed before it is built. The Court nevertheless declined to order demolition on the facts and imposed compensation instead.

Read the two together. Aroskar polices the content of the assessment; Alembic polices its timing. Between them they are the modern law on clearance, and both are the precautionary principle operating through procedure.

The criticisms

The exemptions from public consultation remove the affected population from the process in exactly the categories where a project is often most contentious.

Category B is decided by a State authority which is frequently the same government that is promoting the project.

Post-facto regularisation has repeatedly been attempted by executive circular and notification, and each attempt has had to be litigated.

Compliance is self-reported, and the monitoring capacity of the regional offices is small relative to the number of cleared projects.

Cumulative and strategic assessment is absent. The notification assesses projects, not plans or policies, so the decision to industrialise a stretch of coast is never itself assessed.

Worked example

A company proposes a cement plant. The site is eight kilometres from the boundary of a wildlife sanctuary. The company applies to the State authority on the footing that the plant is below the Category A threshold.

Step one, which category? On size alone it is Category B. But the general condition applies: a project that would otherwise be Category B is treated as Category A if it is located within the specified distance of a protected area, a critically polluted area, an eco-sensitive area or an inter-State or international boundary. Proximity to the sanctuary makes it Category A, so the appraisal is by the Expert Appraisal Committee constituted by the Central Government and the clearance is granted by the Ministry. The application to the State authority is misconceived.

Step two, what "prior" means. The clearance must precede the project. If the company begins construction and applies afterwards, Alembic Pharmaceuticals Ltd v. Rohit Prajapati holds that an ex post facto clearance is in derogation of the fundamental principles of environmental jurisprudence and an anathema to the notification, because prior clearance is what allows the environmental consequences to be weighed before the project is built.

Step three, what the assessment must contain. The actual ecological character of the site. On Hanuman Laxman Aroskar v. Union of India, an assessment which does not disclose material facts vitiates the clearance built on it, the expert committee must apply its mind to the actual ecological character of the site, and the process is a form of due diligence the law requires and not a formality to be completed.

Step four, what happens if the committee simply notes the report. That is the Article 14 case set out in the chapter on arbitrary environmental decisions: a relevant consideration omitted, a defective record, and no application of mind.

Step five, the remedy. An appeal to the National Green Tribunal under section 16 of the National Green Tribunal Act 2010 against an order granting environmental clearance, to be preferred within thirty days of communication, extendable by a further sixty on sufficient cause.

And the legal basis to name. The notification is subordinate legislation made under section 3 of the Environment (Protection) Act 1986, and section 3(2)(v) particularises the power to restrict areas in which industries, operations or processes shall not be carried out or shall be carried out subject to safeguards. A question about the legal basis of environmental clearance in India is answered by section 3, not by the notification.

Quick revision

• Source of power: section 3(1) and 3(2)(v) of the Environment (Protection) Act 1986. The notification is subordinate legislation.
• Category A: Central Government, Expert Appraisal Committee, assessment always required. Category B: State authority and State committee, screened into B1 requiring assessment and B2 not.
• The general condition raises a Category B project to Category A by proximity to a protected, critically polluted, eco-sensitive or boundary area.
• Four stages: screening (Category B only), scoping which fixes the terms of reference, public consultation by public hearing and written responses, and appraisal.
• Aroskar polices the content of the assessment; Alembic polices its timing, holding ex post facto clearance to be an anathema to the notification.
• Criticisms: exemptions from consultation, State appraisal of State projects, repeated attempts at regularisation, self-reported compliance, and no cumulative or strategic assessment.

Test yourself

1. What is the source of the legal power to require prior environmental clearance in India?

Section 3(1) of the Environment (Protection) Act 1986, which empowers the Central Government to take all such measures as it deems necessary for protecting and improving the quality of the environment, read with section 3(2)(v), which includes the restriction of areas in which industries, operations or processes shall not be carried out or shall be carried out subject to safeguards. The EIA Notification 2006 is subordinate legislation made under that power.

2. Distinguish Category A from Category B, and explain what B1 and B2 are.

Category A comprises the larger and more sensitive projects listed as such in the Schedule, appraised by a central Expert Appraisal Committee with clearance granted by the Ministry, and always requiring an assessment. Category B comprises the smaller projects, appraised by a State Level Expert Appraisal Committee and cleared by a State Level Environment Impact Assessment Authority, and is screened into B1, which requires an assessment report, and B2, which does not.

3. Name the four stages and say which one fixes what the assessment must study.

Screening, scoping, public consultation and appraisal. Scoping fixes what must be studied, because the appraisal committee determines the terms of reference addressing the relevant environmental concerns of the particular project.

4. What is the combined effect of Aroskar and Alembic?

Aroskar governs the content of an assessment: one that does not disclose material facts vitiates the clearance built on it, and the appraisal committee must apply its mind to the actual ecological character of the site. Alembic governs its timing: an ex post facto clearance is in derogation of the fundamental principles of environmental jurisprudence and an anathema to the notification, because prior clearance is what allows consequences to be weighed before construction. Together they are the modern law on environmental clearance, and both are the precautionary principle operating through procedure.