 "Govt proposes new rules to give retrospective nod to green law violators")
The Union Ministry of Environment, Forests and Climate Change has proposed a way to retrospectively grant clearances to industries, miners and others who began operations without the mandatory prior clearance, under the Environment Protection Act, 1986.
The ministry had earlier failed in its attempt before the National Green Tribunal (NGT) to defend an administrative order passed by the preceding United Progressive Alliance (UPA) administration, which did the same through an even simpler mechanism. The NGT threw the order out on several grounds.
The ministry put out a draft notification under the law on May 10, which would empower it to grant retrospective clearances to those who illegally build new industries, or expand them without a clearance, or violate the clearance by changing the nature of their product.
The environment ministry responded to queries saying, "The NGT rejected the administrative orders on technical grounds that this cannot be done through an administrative or executive order. We are bringing in a formal notification under the law. Now, the present regulations do not provide a mechanism of bringing the violating industries in to compliance. We believe it's important to do so in a manner that also provides deterrence against such violations by imposing additional costs as the law currently provides for a maximum of only Rs 1 lakh fine."
The ministry added, "The previous order did not act as a deterrent with its weak provision for a mere board resolution."
The earlier ministry order for retrospective clearance required that the board of the company, which is found in violation, pass a resolution promising not to repeat the mistake. It also asked for proof of "credible action" against the violator by the state government though the term was not defined.
In contrast, the new proposal from the ministry asks for an internal assessment by ministry's experts of how much profit the violator may have earned illegally or the value of damage caused and then use this sum to implement a "supplementary plan", which is also decided by the ministry's experts and prepared along with the violators.
About two months ago, the ministry had filed an affidavit before the Supreme Court stating that there are 411 projects that have come up without environmental clearance. The ministry said more such cases could be possible across the country; these were the ones which have so far been detected as they had approached for a retrospective clearance under the previous arrangement, which the NGT had done away with.
An environmental clearance is an elaborate multiple-stage process. The project developer is first told what kind of impact-assessment studies should be done to understand the impact of the project on environment. The developer then prepares an environment impact assessment report which is put before the affected people for their comments. A proper assessment can take almost a year with data being collected over seasons.
This report is then presented before the affected communities at the project site. The communities have the power to outright reject the location of a project though their rejection is only recommendatory. Their views, captured in the public hearing report, are presented before the ministry's expert appraisal committee to recommend the project or not. The ministry takes a final call on the recommendations of the committee.
Starting a industry or its construction without a clearance or not following the conditions for one, attracts a maximum of Rs 1 lakh under the law. Upon filing of a complaint by the government, the project developer can also be imprisoned for up to five years.
But the ministry said it was not aware of any case where a jail term had been given or the maximum fine imposed. In most violation cases, the ministry said, penalties of Rs 25,000 had been imposed.
The ministry has now proposed a new mechanism for retrospectively clearing such projects while the prosecution for violation continues in parallel through local courts.
The notification says the ministry deems it necessary to bring such projects, "under compliance with the environmental laws and in regulated community in the interest of the environment at the earliest point of time rather than left them unregulated and unchecked, which will be more damaging to the environment."
Special central and state-level government expert groups would be appointed by the existing governmental expert appraisal committee to deal with all such cases. In each case of violation, the expert group will assess the profit earned or damage caused by the violator. The methodology to calculate has not been laid down in the notification.
The group will then prepare an "Environmental Supplement Plan". The notification says, "The Expert Group will work on the preparation of Environmental Supplemental Plan with the project proponent." The ministry will simultaneously begin the process of the usual elaborate environmental clearance although retrospectively. The assessed economic cost or undue profit would then be used to fund this supplement plan in addition to the regular conditions laid down for clearance, ministry explained in the response.
The notification says, "The project proponent to compensate may implement the Environmental Supplemental Plan to remediate the damage caused or likely to be caused, and take out the undue economic gain due to non-compliance and violation."
The plan can be to fix the damage done, if any. Or, additionally it can be one or combination of several activities listed out in the notification. This includes providing some medical care in area where either damage has been caused or could be potentially caused. This could include, the notification says, 'mosquito eradication programs or donation of antibiotics during natural disasters or blood and asthma tests, mobile clinics or medical treatment' besides other activities. The supplementary plan can alternatively or additionally be about carrying out environmental studies anywhere in the country or at their own site. Or, it can carry out a project for greenhouse gas emission reduction or in stopping or reducing pollution. It can even be a project to assess pollution from the violators' plants without actually mitigating it.
When asked would the notification not legalise a fait accompli situation even when a public hearing could have possibly rejected the project in entirety, the ministry said: "What is really happening today? There are industries running in violations. They are not coming to the ministry. What is being done? They polluting with impunity. It is better they are brought under the compliance mechanism. How much costs they shall pay can always be provided for later."
The ministry said that the proposal was yet only a draft notification and it could be strengthened based on inputs from people. It said it had not yet devised a method to calculate the environmental damage caused or illegal profits earned as the industrial activities were of diverse form. But, it said it could later consider looking at some parameters.
RELIEF, AS AFTER-EFFECT
New proposed regulation to retrospectively give green clearances to violators
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Law requires mining and other projects to have prior environmental clearance through elaborate process including public consultation and detailed environment impact assessment
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UPA-era administrative order permitted retrospective clearance after a board resolution and ‘credible action’ against violator
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NGT threw out the order
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More than 400 violators already on record. Many others feared. Rate of conviction and fines very low at present. No one has gone to jail for violations
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NDA now proposed to calculate cost of damage or illegal profit to be used for supplementary environmental plans, besides usual clearance procedures
