Environmental Impact Assessment

in India

Legal framework and

Role of the Green Tribunal

3rd November 2011

AMITY Law AMITY Law AMITY Law AMITY Law SchoolSchoolSchoolSchool

NoidaNoidaNoidaNoida, , , , IndiaIndiaIndiaIndia

ValValValValrie BERLANDrie BERLANDrie BERLANDrie BERLAND

FounderFounderFounderFounder, Aagati Consulting, Aagati Consulting, Aagati Consulting, Aagati Consulting

FraFraFraFrance/nce/nce/nce/IndiaIndiaIndiaIndia

OriginOriginOriginOrigin of of of of environmentalenvironmentalenvironmentalenvironmental concernconcernconcernconcern in Indiain Indiain Indiain India

Indian Constitution, 1950Indian Constitution, 1950Indian Constitution, 1950Indian Constitution, 1950

Article 21

Protection Of Life And Personal LibertyProtection Of Life And Personal LibertyProtection Of Life And Personal LibertyProtection Of Life And Personal Liberty

Article 48A

Protection and improvement of environment and safeguardiProtection and improvement of environment and safeguardiProtection and improvement of environment and safeguardiProtection and improvement of environment and safeguarding of forests and wildlifeng of forests and wildlifeng of forests and wildlifeng of forests and wildlife

Article 51A (g) Fundamental duties of every citizen of IndiaFundamental duties of every citizen of IndiaFundamental duties of every citizen of IndiaFundamental duties of every citizen of India

To protect and improve the natural environment including forests, lakes, rivers and wild life

United Nations Conference on the Human Environment, 1972 (StockhUnited Nations Conference on the Human Environment, 1972 (StockhUnited Nations Conference on the Human Environment, 1972 (StockhUnited Nations Conference on the Human Environment, 1972 (Stockholm)olm)olm)olm)

Taking appropriate steps for the protection and improvement of human environment

United Nations Conference on Environment and Development, 1992 (United Nations Conference on Environment and Development, 1992 (United Nations Conference on Environment and Development, 1992 (United Nations Conference on Environment and Development, 1992 (Rio de Janeiro)Rio de Janeiro)Rio de Janeiro)Rio de Janeiro)

Calling the States to develop national laws regarding liability and compensation for the victims of pollution

Ancient traditionAncient traditionAncient traditionAncient tradition

LegislativeLegislativeLegislativeLegislative frameworkframeworkframeworkframework and and and and EnvironmentalEnvironmentalEnvironmentalEnvironmental PolicyPolicyPolicyPolicy

Comprehensive legal framework for dealing with environmental issues relating to forests,

biodiversity, water, air...

Core legislations :

The Environment (Protection) Act 1986 (The Environment (Protection) Act 1986 (The Environment (Protection) Act 1986 (The Environment (Protection) Act 1986 (EPAEPAEPAEPA))));

The National Green Tribunal Act, 2010;The National Green Tribunal Act, 2010;The National Green Tribunal Act, 2010;The National Green Tribunal Act, 2010;

Water (Prevention and Control of Pollution) Act, 1974 (Water Act);

The Air (Prevention and Control of Pollution) Act, 1981 (Air Act);

The Wildlife (Protection) Act; 1972,

The Public Liability Insurance Act, 1991;

The Forest (Conservation) Act, 1980;

National Environment Policy, 2006 (NEP)

Administration/Administration/Administration/Administration/EnforcementEnforcementEnforcementEnforcement of of of of environmentalenvironmentalenvironmentalenvironmental lawslawslawslaws

MinistryMinistryMinistryMinistry of of of of EnvironmentEnvironmentEnvironmentEnvironment and Forest (and Forest (and Forest (and Forest (MoEFMoEFMoEFMoEF)))) nodal agency of the Government of India

regulating and ensuring environmental protection;

formulating the environmental policy framework in the country;

undertaking conservation & survey of flora, fauna, forests and wildlife; and

planning, promoting, co-ordinating and overseeing the implementation of environmental

and forestry programmes.

CPCB = Central Pollution Control BoardCPCB = Central Pollution Control BoardCPCB = Central Pollution Control BoardCPCB = Central Pollution Control Board statutory authority attached to the MoEF

SPCB = State Pollution Control BoardSPCB = State Pollution Control BoardSPCB = State Pollution Control BoardSPCB = State Pollution Control Board

prevention and control of industrial pollution

various authorizations from PCB are required prior to starting operate an industry under

the Water Act, Air Act, etc.

The courts are responsible for enforcing environmental laws

National Green Tribunal since July 2011National Green Tribunal since July 2011National Green Tribunal since July 2011National Green Tribunal since July 2011

EnvironmentEnvironmentEnvironmentEnvironment (Protection) (Protection) (Protection) (Protection) ActActActAct, 1986 (EPA), 1986 (EPA), 1986 (EPA), 1986 (EPA)

ENVIRONMENTENVIRONMENTENVIRONMENTENVIRONMENT includes water, air and land and the inter relationship which exists

among and between water, air and land and human beings, other living creatures, plants,

micro-organism and property

Central Government has the power to take all measures for the purpose of protecting and

improving the quality of the environment and preventing, controlling and abating

environmental pollution

An Act to provide for the protection and improvement of environment

and for matters connected therewith

OriginOriginOriginOrigin of the EIAof the EIAof the EIAof the EIA

Environment (Protection) Act, 1986

Environment (Protection) Rules, 1986

Restriction on industrial location, operations or processes

Set specific standards to restrict the amount of pollutants emitted by industrial

operations

EIA Notification, 1994

EIA Notification, 2006

Construction of new projectsnew projectsnew projectsnew projects or activities or the expansion or modernization expansion or modernization expansion or modernization expansion or modernization

of existing projectsof existing projectsof existing projectsof existing projects or activities listed in the Schedule to the notification

entailing capacity addition with change in process and or technology shall

be undertaken in any part of India only after the prior environmental

clearance from the Central Government or by the State Level Environment

Impact Assessment Authority.

EIA Notification, 2006EIA Notification, 2006EIA Notification, 2006EIA Notification, 2006

A management tool for ensuring optimal use of natural resources for a sustainable development.

Environmental Impact Assessment in the basis on which an environmental clearance can be obtained

Objective: To control the development of industrial activities following the principles of sustainable development

Applicability

Mining, extraction of natural resources and power generation

Primary processing

Materials production (ex: cement plant)

Materials processing (ex: petroleum refining industry)

Manufacturing/ Fabrication (ex: chemical fertilizers, distilleries)

Services sector (ex: oil & gas transportation pipe)

Infrastructures (ex: airports, ports, highways)

Building/ Construction projects/ Area Development projects and Townships

Objectives of an EIA

Undertaken by the project proponent

Carried out by agencies : newly accredited environmental consultancy firms

NABET (National Accreditation Board for Education and Training) is the first organization in the world to offer registration of consultant organizations in various conformity assessment areas

The Environment Impact Assessment (EIA) Consultant registration is the first of its kind in the world

Areas studied in an EIA: land, water, vegetation, fauna, air, aesthetic, socio economic aspects, etc.

Based on primary and secondary environmental data

EIA Notification, 2006EIA Notification, 2006EIA Notification, 2006EIA Notification, 2006

ExampleExampleExampleExample: Ports and : Ports and : Ports and : Ports and HarboursHarboursHarboursHarbours

2 categories:

based on the spatial extent of potential impacts and potential impacts on human health and natural and man made resources

These activities require prior EC from:

Central EIA Authority for category A

State EIA Authority for category B

EC EC EC EC processprocessprocessprocess

SCREENING

SCOPING

PUBLIC

CONSULTATION

APPRAISAL

FORM 1

EIA

REPORT

main

documents

TOR

4 stages

To make the clearance To make the clearance To make the clearance To make the clearance

process more effectiveprocess more effectiveprocess more effectiveprocess more effective

Problems related to the EIA methodProblems related to the EIA methodProblems related to the EIA methodProblems related to the EIA method

Which solutions?Which solutions?Which solutions?Which solutions?

Institutionalize regional and cumulative environmental impact aInstitutionalize regional and cumulative environmental impact aInstitutionalize regional and cumulative environmental impact aInstitutionalize regional and cumulative environmental impact assessmentsssessmentsssessmentsssessments

Assess the potential for chemical accidentsssess the potential for chemical accidentsssess the potential for chemical accidentsssess the potential for chemical accidents

Projects involving largelargelargelarge----scale diversion of prime agricultural land would require scale diversion of prime agricultural land would require scale diversion of prime agricultural land would require scale diversion of prime agricultural land would require

environmental appraisalenvironmental appraisalenvironmental appraisalenvironmental appraisal

Encourage clustering of industriesEncourage clustering of industriesEncourage clustering of industriesEncourage clustering of industries

To make the clearance process more effectiveTo make the clearance process more effectiveTo make the clearance process more effectiveTo make the clearance process more effective

Restrict the diversion of dense natural forests Restrict the diversion of dense natural forests Restrict the diversion of dense natural forests Restrict the diversion of dense natural forests and areas of high endemism of genetic

resources

Ensure provision for environmental restoration after decommissioEnsure provision for environmental restoration after decommissioEnsure provision for environmental restoration after decommissioEnsure provision for environmental restoration after decommissioning ning ning ning of industries and

institutionalize a system of post-monitoring of such projects

Formulate codes of codes of codes of codes of good practicesgood practicesgood practicesgood practices for environmental management for different

categories

Representation of non-government organizations in the committee of experts

Opposition to centralization of EIA by the establishment of environmental courts environmental courts environmental courts environmental courts that will

examine the impact and resolve the disputes in appealexamine the impact and resolve the disputes in appealexamine the impact and resolve the disputes in appealexamine the impact and resolve the disputes in appeal

Rights to appeal against the decision Rights to appeal against the decision Rights to appeal against the decision Rights to appeal against the decision

of the of the of the of the MoEFMoEFMoEFMoEF not to grant ECnot to grant ECnot to grant ECnot to grant EC

Any person who owns or has control over the projectAny person who owns or has control over the projectAny person who owns or has control over the projectAny person who owns or has control over the project with respect to which an

application has been submitted for environmental clearance environmental clearance environmental clearance environmental clearance and is aggrieved

by an order for the same, may within 30 days within 30 days within 30 days within 30 days from the date of such order,

prefer an appeal to the Authorityappeal to the Authorityappeal to the Authorityappeal to the Authority.

The regulations dealing with the grant of licences/authorisations include provisions for

appeal where:

licences/permits are not granted by the concerned authority; or

against any onerous conditions contained in the licences/permit.

The appeal lies to the higher authority within 30 days from the date of the order against

which the appeal is to be filed

Case of the Navi Mumbai Airport

Violation of permits Violation of permits Violation of permits Violation of permits

Enforcement powers of environmental regulatorsEnforcement powers of environmental regulatorsEnforcement powers of environmental regulatorsEnforcement powers of environmental regulators

The Indian regulatory framework recognizes civil and criminal liability civil and criminal liability civil and criminal liability civil and criminal liability that can arise from

breach of environmental laws and/or permits.

Most situations of non compliance are governed by civil sanctions

Criminal processes and sanctions would be available for serious infringements of

environmental law (public nuisance).

In case of enforcement of civil liability the aggrieved person is entitled to

(i) a common law tort action against the polluter;

(ii) in the event of damage from hazardous industry accidenthazardous industry accidenthazardous industry accidenthazardous industry accident, an application for

compensation under Public Liability Insurance Act, 1991 compensation under Public Liability Insurance Act, 1991 compensation under Public Liability Insurance Act, 1991 compensation under Public Liability Insurance Act, 1991 and the National Green Tribunal National Green Tribunal National Green Tribunal National Green Tribunal

Act, 2010Act, 2010Act, 2010Act, 2010

National Green TribunalNational Green TribunalNational Green TribunalNational Green Tribunal

The National Green Tribunal Act (NGT) was established in 2010 under India's

constitutional provision of Article 21, which assures the citizens of India, the right to a

healthy environment

Began functioning on 4th July 2011 with the initial support of the MoEF

Headquartered in Delhi, the tribunal has four circuit branches in Bhopal, Pune, Kolkata and Chennai

An Act to provide for the establishment of a National Green Tribunal establishment of a National Green Tribunal establishment of a National Green Tribunal establishment of a National Green Tribunal for the

effective and expeditious disposal of cases relating to environmeffective and expeditious disposal of cases relating to environmeffective and expeditious disposal of cases relating to environmeffective and expeditious disposal of cases relating to environmental ental ental ental

protectionprotectionprotectionprotection and conservation of forests and other natural resources including

enforcement of any legal right enforcement of any legal right enforcement of any legal right enforcement of any legal right relating to environment and giving relief and giving relief and giving relief and giving relief and

compensation for damagescompensation for damagescompensation for damagescompensation for damages to persons and property and for matters connected

therewith or incidental thereto.

Why has it been created ? Other courts: no expertise, overloaded, time lines

The Tribunal has dedicated jurisdiction jurisdiction jurisdiction jurisdiction over all civil cases in respect of environmentover all civil cases in respect of environmentover all civil cases in respect of environmentover all civil cases in respect of environment----related casesrelated casesrelated casesrelated cases and shall provide speedy environmental justice speedy environmental justice speedy environmental justice speedy environmental justice and help reduce the burden of litigation on the higher courts

Disposal within 6 months

NGT shall be guided by principles of natural justice

The tribunal consists of:

One Chairperson One Chairperson One Chairperson One Chairperson

(appointed by Central Government in consultation with the Chief Justice of India)

10 to 20 full time Judicial Members 10 to 20 full time Judicial Members 10 to 20 full time Judicial Members 10 to 20 full time Judicial Members

(Judges of the Supreme Court of India, Chief Justice of a High Court)

10 to 20 full time Experts Members 10 to 20 full time Experts Members 10 to 20 full time Experts Members 10 to 20 full time Experts Members

(Experts with a Master or Doctorate Degree along with 15 years experience)

National Green TribunalNational Green TribunalNational Green TribunalNational Green Tribunal

The Tribunal will provide:

Relief and compensation to the victims of pollution and other environmental damage

For restitution of property damaged

For restitution of the environment for such areas

Recently, the MoEF, based on the findings of the Tribunal, had cancelled

environmental clearance granted to projects such as the Goa-based iron mine of the

Vedanta Group

National Green TribunalNational Green TribunalNational Green TribunalNational Green Tribunal

Across US & Europe, the adjudication of environmental disputes is being done the

traditional way i.e. through normal courts with designated environmental benchesenvironmental benchesenvironmental benchesenvironmental benches

India is playing a leading role in Asia with its NGT being the most comprehensive and NGT being the most comprehensive and NGT being the most comprehensive and NGT being the most comprehensive and

promising promising promising promising among the specialized environmental Courts created in Asia over the last

decade

The most important feature of the NGT is that it has equal judicial and technical equal judicial and technical equal judicial and technical equal judicial and technical

members members members members giving strong scientific expertise to environmental adjudicationenvironmental adjudicationenvironmental adjudicationenvironmental adjudication

The NGT has been set up primarily as a reform initiated by the Supreme Court of Indiareform initiated by the Supreme Court of Indiareform initiated by the Supreme Court of Indiareform initiated by the Supreme Court of India

Confirms the commitment of the Indian legal system to environmental protection

i.e. significant growth in the access of Indian citizens to environmesignificant growth in the access of Indian citizens to environmesignificant growth in the access of Indian citizens to environmesignificant growth in the access of Indian citizens to environmental justicental justicental justicental justice

Green Tribunals around the worldGreen Tribunals around the worldGreen Tribunals around the worldGreen Tribunals around the world

THANK YOU FOR YOUR ATTENTIONTHANK YOU FOR YOUR ATTENTIONTHANK YOU FOR YOUR ATTENTIONTHANK YOU FOR YOUR ATTENTION

Valerie BERLANDValerie BERLANDValerie BERLANDValerie BERLAND

Founder, Aagati Consulting

Email: valerie.berland@aagati.com

Website: www.aagati.com