In a landmark judgment, the National Green Tribunal (NGT), Principal Bench, presided by Justice Swatanter Kumar, on December 8, 2017, quashed the decision of MOEF&CC exempting the operation of the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974  for Building and Construction projects upto 150,000 Sq Mts.  It also stayed the operation of the the Notification dated December 9, 2016 issued by MoEF&CC which exempted real-estate projects upto 1,50,000 sq.m built up area from the need for undergoing environmental impact assessment (EIA) and obtaining Environmental Clearance (EC) from MoEF/ State Level Environment Impact Assessment Authorities (SEIAA).

The 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 builders lobby. Most significantly, all the exemptions were ironically done by stating that the exclusion of the application of environmental law was essential in order to improve the quality of environment.

Background

Under the existing law, all Building and Construction projects from 20,000 Sq Mts requires an environmental clearance EC 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.

The judgment

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 environment impact of the building and construction activity. The construction industry consumes enormous resources and has a significant energy footprint; the sector emits 22 per cent of India’s total annual carbon-dioxide emission.”

The Tribunal for the first time placed profound reliance on the International law Principle of Non-regression and held:

“Under the International law, the doctrine of Non-regression is an accepted norm. It is founded on the idea that environmental law should not be modified to the detriment of environmental protection. This principle needs to be brought into play because today environmental law is facing a number of threats such as deregulation, a movement to simplify and at the same time diminish, environmental legislation perceived as too complex and an economic climate which favours development at the expense of protection of environment. The draft amendment of the existing environmental laws should be done with least impact on environment protection that was available under the existing law or regime.”

The Tribunal also strongly reprimanded the Ministry for overlooking its own findings regarding the incompetence of local authorities to appraise real-estate projects as reported by the committee headed by Dr. K. Kasturirangan and noted that,“The MoEF&CC vide OM dated 10.11.2015, reiterated and vetted the recommendations of Kasturirangan Committee among other things. If the MoEF&CC is now changing its stand, it is duty bound to produce back-up study or research material to prove that the local bodies have concern towards environment.”

Further, the Tribunal noted:

The impugned notification, takes away the power of the Pollution Control Boards and Committee to grant/refuse Consent to Establish and Consent to Operate for building and construction projects up to an area of 1,50,000 sq meter. It further dilutes the entire environmental assessment framework under the EIA notification 2006, which has been periodically strengthened and amended by the numerous orders of this Hon’ble Tribunal.”

The MoEF&CC has failed to produce any study, literature, evaluation of the reason for taking such a retrograde decision to go back to a pre-2004 situation wherein the failure of the local bodies was considered to be the primary reason for bringing building and constructions activity within the EIA framework. In pre-2004 the position was that the construction sector projects were only regulated through Bye Laws and no Environmental Clearance was required.

While exercising powers under a subordinate legislation in furtherance to Section 3 and Rule 5, the authority cannot in exercise of its subordinate legislation exclude the operation of a substantive law that is Water Act, 1974 and Air Act, 1981 enacted by the Parliament. This would suffer from the vires of excessive legislation. It is strange that the MoEF&CC, a delegate under the said provision could venture upon excluding the application and enforcing of a Parliament Act without even making any amendment under that act or the rules framed under that act. This action of the MoEF&CC cannot stand the scrutiny of law.

Final Directions

We hold and declare that (i) clause 14(8), (ii) the provisions relating to exclusion of Consent to Operate and Consent to Establish under Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 in clause 14 of the impugned Notification; (iii)Appendix-XVI relating to constitution and functioning of Environmental Cell, cannot be sustained and are liable to be quashed for the reasons afore-stated. Thus, we direct MoEF&CC to re-examine its Notification dated 9th December, 2016 and take appropriate steps to delete, amend and rectify the clauses of the said Notification in light of this judgement“.

Additionally, “MoEF&CC shall, particularly take care that the laudable social cause of ‘providing Housing to the poor’ does not get defeated by business, economic profitability with reference to ‘ease of doing business’, while particularly protecting the environment.” 

In a landmark judgment, the National Green Tribunal (NGT), Principal Bench, presided by Justice Swatanter Kumar, on December 8, 2017, quashed the decision of MOEF&CC exempting the operation of the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974  for Building and Construction projects upto 150,000 Sq Mts.  It also stayed the operation of the the Notification dated December 9, 2016 issued by MoEF&CC which exempted real-estate projects upto 1,50,000 sq.m built up area from the need for undergoing environmental impact assessment (EIA) and obtaining Environmental Clearance (EC) from MoEF/ State Level Environment Impact Assessment Authorities (SEIAA).

The 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 builders lobby. Most significantly, all the exemptions were ironically done by stating that the exclusion of the application of environmental law was essential in order to improve the quality of environment.

Background

Under the existing law, all Building and Construction projects from 20,000 Sq Mts requires an environmental clearance EC 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.

The judgment

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 environment impact of the building and construction activity. The construction industry consumes enormous resources and has a significant energy footprint; the sector emits 22 per cent of India’s total annual carbon-dioxide emission.”

The Tribunal for the first time placed profound reliance on the International law Principle of Non-regression and held:

“Under the International law, the doctrine of Non-regression is an accepted norm. It is founded on the idea that environmental law should not be modified to the detriment of environmental protection. This principle needs to be brought into play because today environmental law is facing a number of threats such as deregulation, a movement to simplify and at the same time diminish, environmental legislation perceived as too complex and an economic climate which favours development at the expense of protection of environment. The draft amendment of the existing environmental laws should be done with least impact on environment protection that was available under the existing law or regime.”

The Tribunal also strongly reprimanded the Ministry for overlooking its own findings regarding the incompetence of local authorities to appraise real-estate projects as reported by the committee headed by Dr. K. Kasturirangan and noted that,“The MoEF&CC vide OM dated 10.11.2015, reiterated and vetted the recommendations of Kasturirangan Committee among other things. If the MoEF&CC is now changing its stand, it is duty bound to produce back-up study or research material to prove that the local bodies have concern towards environment.”

Further, the Tribunal noted:

The impugned notification, takes away the power of the Pollution Control Boards and Committee to grant/refuse Consent to Establish and Consent to Operate for building and construction projects up to an area of 1,50,000 sq meter. It further dilutes the entire environmental assessment framework under the EIA notification 2006, which has been periodically strengthened and amended by the numerous orders of this Hon’ble Tribunal.”

The MoEF&CC has failed to produce any study, literature, evaluation of the reason for taking such a retrograde decision to go back to a pre-2004 situation wherein the failure of the local bodies was considered to be the primary reason for bringing building and constructions activity within the EIA framework. In pre-2004 the position was that the construction sector projects were only regulated through Bye Laws and no Environmental Clearance was required.

While exercising powers under a subordinate legislation in furtherance to Section 3 and Rule 5, the authority cannot in exercise of its subordinate legislation exclude the operation of a substantive law that is Water Act, 1974 and Air Act, 1981 enacted by the Parliament. This would suffer from the vires of excessive legislation. It is strange that the MoEF&CC, a delegate under the said provision could venture upon excluding the application and enforcing of a Parliament Act without even making any amendment under that act or the rules framed under that act. This action of the MoEF&CC cannot stand the scrutiny of law.

Final Directions

We hold and declare that (i) clause 14(8), (ii) the provisions relating to exclusion of Consent to Operate and Consent to Establish under Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981 in clause 14 of the impugned Notification; (iii)Appendix-XVI relating to constitution and functioning of Environmental Cell, cannot be sustained and are liable to be quashed for the reasons afore-stated. Thus, we direct MoEF&CC to re-examine its Notification dated 9th December, 2016 and take appropriate steps to delete, amend and rectify the clauses of the said Notification in light of this judgement“.

Additionally, “MoEF&CC shall, particularly take care that the laudable social cause of ‘providing Housing to the poor’ does not get defeated by business, economic profitability with reference to ‘ease of doing business’, while particularly protecting the environment.” 

Please find the detailed judgment attached here.