STATUTORY REGIMES REGULATING RISK 2

​IV. REGULATORY REGIMES UNDER THE ENVIRONMENT PROTECTION ACT
WEEK 7-8

STATUTORY REGIMES REGULATING RISK

The EIA Regulations were framed under section 3 of the Environment (Protection) Act of 1986, which in pertinent part reads: 

3. Power of Central Government to take measures to protect and improve environment. —
(1) Subject to the provisions of this Act, the Central Government shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution. 

(2) In particular and without prejudice to the generality of the provisions of sub- section (1), such measures may include measures with respect to all or of any of the following matters, namely: 

... (v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards. 

​https://environmentclearance.nic.in/writereaddata/EIA_Notifications/1_SO1533E_14092006.pdf

Source: https://environmentclearance.nic.in/report/EIA_Notifications.aspx

Utkarsh Mandal v. Union of India

uDate: November 6, 2009

uPlaintiff: Utkarsh Mandal (Petitioner)

uDefendant: Union of India (Respondents)

uClaim: The Appellant challenged the order dated 14th
October 2008 passed by the National Environmental
Appellate Authority (NEAA), New Delhi, dismissing the
Appeal No. 12 of 2007 filed by the Appellant. The Appellant
also seeks the quashing of an order dated 26 July 2007
issued by the Ministry of Environment and Forests (MoEF),
Government of India granting Environment Clearance to
M/s. Panduranga Timblo Industries, Margao, Goa,
Respondent No. 3 herein for renewal of the mining lease in
respect of the Borga Iron Ore Mine (ML-II). The NEAA has
affirmed the said order dated 26 July 2007 of the MoEF
granting environmental clearance.

uSpecific Issues: Environment protection, pollution control,
health hazard, principle of natural justice, conflict of interest,
environmental and social damage.

uForum: High Court of Delhi

uIssues: The procedural propriety of the grant of an environmental
clearance to the Borga Mines to Panduranga Timblo Industrias was the
issue before the High Court of Delhi in a writ petition filed by Utkarsh
Mandal.

uNarrow holding: The court sets aside the impugned order dated 26
July 2007 passed by the MoEF and the impugned order dated 14
October 2008 of the NEAA. The matter is remanded to the EAC
(Mines) to be constituted afresh by the MoEF. If the MoEF reiterates
its decision to grant environmental clearance, Respondent No. 3 will
not need to obtain fresh consequential permissions. If not, the grant of
such permissions will not give any right to Respondent No. 3 to
operate the mine in question. The Appellants are awarded costs of Rs.
10,000/- to be paid by each of the Respondents within four weeks.

uBroader significance: Mining can cause in erosion, sinkholes, loss
of biodiversity, or the contamination of soil, groundwater, and surface
water by chemicals emitted from mining processes. These processes
also affect the atmosphere through carbon emissions which contributes
to climate change.

Samarth Trust & Anr Registered Trust v.
Union of India

uDate: May 28, 2010

uPlaintiff: Samarth Trust & Anr. (Petitioner)

uDefendant: Union of India Ministry of
Environment and Forests & Ors. (Respondents)

uClaim: Challenging Union of India Ministry of
Environment and Forests & Ors for not
conducting the public hearing as per law.

uSpecific Issues: Environment impact assessment,
public hearing, Jan Sunwai, writ petition,
PIL/Public interest Litigation, Environment
protection, pollution control, principle of natural
justice,

uForum: High court of Delhi

uIssues: Whether the nature, scope, and methodology of a public hearing held
in accordance with the notification dated 14th September, 2006 issued by the
Ministry of Environment and Forests (MOEF) were followed in the present
case. And whether the petitioner filed the writ petition as a bona fide public
interest litigant.

uNarrow holding: The court found that the public hearing conducted in the
present case conformed to the nature, scope, and methodology as outlined in
the MOEF notification. The court did not make a ruling on whether the
petitioner is a bona fide public interest litigant. Also, the writ petition was
dismissed with costs of Rs. 25,000 payable to Aqua.

uBroader significance: The public hearing process involves four stages:
screening, scoping, public consultation, and appraisal. The public hearing
should be completed within 45 days from the date of receipt of a request from
the project proponent. The public hearing allows the public to express their
views on the social and health impact of a proposed project.

Hanuman Laxman Aroskar v. Union of
India

uDate: March 29, 2019

uPetitioner: citizen Hanuman Laxman Aroskar and the NGO
Federation of Rainbow Warriors.

uRespondent: union of India

uClaim: The Court suspended the airport's environmental
clearance on the grounds that the government failed to take into
account impacts on the environment that were crucial to the
environmental assessment process. The Court reasoned that
"[f]undamental to the outcome of this case is a quest for
environmental governance within a rule of law paradigm.

uSpecific issue: The Court further noted that the project proponent
failed to address other important issues in the manner required
by the EIA Notification, 2006, and that the Expert Appraisal
Committee (EAC) failed to undertake an appropriate public
consultation in this matter.

uForum: Supreme court of India

uIssue: Whether the Indian government's approval of a new
airport adequately considered environmental impacts

uNarrow holding: The Supreme Court removed its suspension of the
environmental clearance on January 16, 2020, after new statements from the
airport project stakeholders, enabling the airport project to proceed. The
government enforced additional environmental requirements on the project in
response to the additional environmental impact evidence supplied, which
included a commitment to establish the airport a “zero-carbon airport
operation.” The court issued that the government has appropriately addressed
concerns raised in the court’s 2019 ruling. The National Environmental
Engineering Research Institute was also established to conform with the
government’s environmental criteria, and the project developers were
required to pay the charges of monitoring.

uBroader significance: The court reasoned that it was essential to the
resolution of this lawsuit as a driver for sustainable development within a rule
of law framework. The Court went on to say that the Paris Agreement and
India’s Nationally Determined Commitment to the Paris Agreement were
both important aspects of India’s environmental rule of law and that the
government had to strike a proper balance between environmental concerns
and airport development goals.

Environmental Impact Assessment Notification 2020
v. Environmental Impact Assessment Notification 2006

The process of environmental clearance in India is currently regulated by the Environmental Impact Assessment Notification 2006. In March 2020, the Government of India issued the Draft Environmental Impact Assessment Notification 2020, which sought to replace the 2006 Notification. The most contested provision of the Draft Notification is the procedure to deal with cases of violation. While the 2006 Notification lays down a strong regulatory procedure to deal with such cases, the Draft Notification weakens it. In this context, this Note presents two arguments. First, the Draft Notification has altered the procedure such that its deterrent effect, and potential to immediately prevent environmental harm, is diluted. Consequently, it normalizes violation and ex-post facto clearances, and weakens its risk avoidance and risk management potential. Second, the proposed procedure is counterintuitive to the precautionary principle.

Comparison of the procedure to deal with cases of violation under the 2006 notification
and Draft Notification.

Courts

ØReporting the violation

ØImmediate suspension of
the impugned project

ØRight to environmental
clearance

ØFiscal Penalties

Current Procedure

Any person can report the violation.

Stipulates immediate suspension of the
impugned project through a resolution
from the project’s Board of Directors. The
said resolution must be passed within sixty
days, and in the meantime, the project is
de-listed by the Regulatory Authority.

Even if the Board of Directors pass a
Resolution and the project proponent
immediately suspends the activity,
consideration of her application for EC
ceases to be a matter of right. It remains
at the discretion of the concerned
Regulatory Authority, which may choose
to outrightly reject the proposal and not
consider it at all

Imposition of a fine up to one lakh rupees
or imprisonment up to five years, or both
as per Section 15 of the Environmental
Protection Act 1986

Proposed Procedure

Limited to four categories, i.e. suo moto application
of the project proponent; reporting by any
Government Authority; found during the Appraisal
Stage by the Appraisal Committee; or found by the
Regulatory Authority while processing the
application.

Eliminates the provision of immediate suspension
and de-listing.

Provision omitted. Therefore, despite the violation,
consideration of application for EC remains a matter
of right.

Prescribes additional fiscal penalties. Allows the
imposition of a penalty under Section 15 of the
Environment Protection Act 1986. Additionally, the
project proponent may be required to submit a late
fee; and submit a bank guarantee, for an amount
fixed by the Appraisal Committee in the
Remediation Plan, and the Natural and Community
Resource Augmentation Plan.

The Coastal Regulation Zone Notification of 1991 and its subsequent amendments have been the primary regulatory framework for coastal zone management in India. The notification aims to regulate activities in the coastal zone to protect the environment and coastal communities.
Impact on Land Use Change
u The regulation has had a significant impact on land use change in the coastal zone. It has restricted activities such as construction, mining, and industry in the coastal zone. The regulation has also led to the restoration of degraded coastal areas and the protection of sensitive ecosystems.

The CRZ Notification 2011 replaced the 1991 notification and introduced several
changes to the regulatory framework. It classified the CRZ areas into four categories and allowed for certain development activities with prior clearance from the authorities. CRZ management faces several challenges, including enforcement, lack of clarity in the regulatory framework, and conflicts between development and environmental protection.
These challenges need to be addressed to ensure effective CRZ management.
CRZ management in India has come a long way since the introduction of the first notification in 1991. While there are still challenges to be addressed, the success stories demonstrate that effexctive CRZ management is possible. It is essential to continue balancing development and environmental protection in the coastal areas of India.

Worli Koliwada Nakhwa v. Municipal
Corporation of Greater Mumbai

uDate: July 16, 2019

uPlaintiff: Worli Koliwada Nakhwa (Petitioner)

uDefendant: Municipal Corporation of Greater Mumbai
(Respondents)

uClaim: The Joint Technical Committee (JTC) noted that the current legislation permits the construction of a coastal road on stilts. The JTC analyzed the need for a coastal road and the project cost if built on stilts or on reclaimed land, focusing on the environmental aspect. The JTC concluded that the construction of a coastal road would have minimal impact on the tides
and tidal circulation around Mumbai. The Maharashtra Coastal Zone Management Authority (MCZMA) also considered the proposal and highlighted the necessity and cost-effectiveness of a coastal road in the larger public interest. The proposed amendment permitted the construction of a coastal road on reclaimed land without affecting the tidal flow of water. The plaintiffs also sought to restrain construction activities in the fishing zone from Worli to Banganga.

uSpecific issues: Island city, stilts, coastal roads, tide,
tidal circulation, environment protection, pollution,
environmental clearance.

uForum: High Court of Bombay

uIssues: Whether the amendment to CRZ-2011 permitting the construction of a
coastal road on reclaimed land is legal and in accordance with the
Environment (Protection) Act, 1986?, Whether the approvals granted by
MCZMA, EAC, and MoEF for the coastal road project are valid?, Whether the
construction of the coastal road would have adverse environmental
impacts?, Whether there was proper scientific study and consideration of
environmental issues before granting approvals?

uNarrow holding: The court held that the amendment to CRZ-2011 permitting
the construction of a coastal road on reclaimed land is legal and in
accordance with the Environment (Protection) Act, 1986. However, the
approvals granted by MCZMA, EAC, and MoEF for the coastal road project
were deemed invalid due to the lack of proper scientific study and
consideration of environmental issues. The court quashed the approvals and
declared that MCGM cannot proceed with the works without obtaining
environmental clearance and permission under the Wildlife (Protection) Act,
1972.

uBroader significance: The court reasoned that the amendment to CRZ-2011 does not violate the Environment (Protection) Act, 1986 and is not manifestly arbitrary. The court emphasized that the construction of a coastal road on reclaimed land is permitted only in exceptional cases, subject to approval by high-level authorities. The court also noted that the construction of the coastal road would not have adverse environmental impacts based on expert opinions. However, the court found that there was a lack of proper scientific study and consideration of environmental issues by MCZMA, EAC, and MoEF, rendering their approvals invalid.

Worli Koliwada Nakhwa v. Municipal
Corporation of Greater Mumbai

uDate: July 16, 2019

uPlaintiff: Worli Koliwada Nakhwa (Petitioner)

uDefendant: Municipal Corporation of Greater Mumbai
(Respondents)

uClaim: The Joint Technical Committee (JTC) noted that
the current legislation permits the construction of a
coastal road on stilts. The JTC analyzed the need for a
coastal road and the project cost if built on stilts or on
reclaimed land, focusing on the environmental
aspect. The JTC concluded that the construction of a
coastal road would have minimal impact on the tides
and tidal circulation around Mumbai. The Maharashtra
Coastal Zone Management Authority (MCZMA) also
considered the proposal and highlighted the necessity
and cost-effectiveness of a coastal road in the larger
public interest. The proposed amendment permitted
the construction of a coastal road on reclaimed land
without affecting the tidal flow of water. The plaintiffs
also sought to restrain construction activities in the
fishing zone from Worli to Banganga.

uSpecific issues: Island city, stilts, coastal roads, tide,
tidal circulation, environment protection, pollution,
environmental clearance.

uForum: High Court of Bombay

uIssues: Whether the amendment to CRZ-2011 permitting the construction of a
coastal road on reclaimed land is legal and in accordance with the
Environment (Protection) Act, 1986?, Whether the approvals granted by
MCZMA, EAC, and MoEF for the coastal road project are valid?, Whether the
construction of the coastal road would have adverse environmental
impacts?, Whether there was proper scientific study and consideration of
environmental issues before granting approvals?

uNarrow holding: The court held that the amendment to CRZ-2011 permitting
the construction of a coastal road on reclaimed land is legal and in
accordance with the Environment (Protection) Act, 1986. However, the
approvals granted by MCZMA, EAC, and MoEF for the coastal road project
were deemed invalid due to the lack of proper scientific study and
consideration of environmental issues. The court quashed the approvals and
declared that MCGM cannot proceed with the works without obtaining
environmental clearance and permission under the Wildlife (Protection) Act,
1972.

uBroader significance: The court reasoned that the amendment to CRZ-2011
does not violate the Environment (Protection) Act, 1986 and is not manifestly
arbitrary. The court emphasized that the construction of a coastal road on
reclaimed land is permitted only in exceptional cases, subject to approval by
high-level authorities. The court also noted that the construction of the
coastal road would not have adverse environmental impacts based on
expert opinions. However, the court found that there was a lack of proper
scientific study and consideration of environmental issues by MCZMA, EAC,
and MoEF, rendering their approvals invalid.