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New Delhi: It is becoming harder to ignore the Indian government’s hand in encouraging the country’s corporate sector to violate environmental norms. Earlier this month, the Madras high court stayed a set of standard operating procedures (SoPs) that the government had issued to facilitate industries in procuring post facto environmental clearances, simply by paying a penalty.
The SoPs had been issued through a simple office memorandum, instead of under the terms of the Environment Impact Assessment (EIA) Notification 2006. As a result, the government has bypassed the notification’s provisions.
This isn’t the first instance of the Narendra Modi government helping industries bypass the rigours of environmental impact assessments and public consultations before executing their projects.
The Union environment ministry issued the SoPs on July 7, 2021. To obtain post facto environmental clearances, new entities have to pay a fine of 1% of their project’s cost and 0.25% of their turnover, calculated until the date on which they apply for the clearance. A similar penalty has also been specified to legitimise existing industrial units that have expanded their operations without obtaining clearances.
But the Madurai bench of the Madras high court stayed these SoPs on July 15. A bench comprising Justices T.S. Sivagnanam and S Ananthi were responding to a public interest litigation (PIL) suit alleging that the office memorandum violated the EIA Notification 2006, the Environment (Protection) Act 1986 and the principles of ‘sustainable development’ and ‘inter-generational equity’.
“Providing an illegal backdoor to obtain post facto clearance defeats the purpose served by [the] process established by law,” the PIL reads. “An office memorandum, which is an administrative order at best, cannot negate a statutory requirement under EIA Notification 2006.”
The ministry’s SoPs followed a stay order on another of the ministry’s schemes, introduced to legitimise industries set up illegally along India’s coast. On May 7, 2021, a division bench of the Bombay high court stayed the scheme, which would issue post facto coastal regulation zone (CRZ) clearances to all industries set up without conducting environmental impact assessments.
Similarly, in March 2017, the environment ministry had introduced a one-time amnesty scheme of six months to provide post facto environmental clearances to industries that had been set up in violation of the EIA Notification 2006. In response to a writ petition by the Puducherry Environment Protection Association, the ministry told the Madras high court that it was a one-time measure and wouldn’t be repeated. The writ petition was disposed of in October 2017.
The draft EIA Notification 2020, put together by the Modi government, pledges to make post facto environmental clearances a norm instead of the exception. The government also issued the draft notification in the middle of the nationwide lockdown that began from March 24, 2020, at a time when few people’s attention was not on the COVID-19 pandemic. According to the draft rules, post facto clearances can be granted against payment of a penalty, which would be fixed at 1.5-times of the “ecological damage assessed and economic benefit derived due to the violation”, if the project proponent files the application suo motu.
“A massive public outcry last year forestalled the push for EIA Notification 2020, which would have devastated whatever is left of India’s environment,” said Leo Saldanha, of the Bengaluru-based Environmental Support Group. “But then, since commitments had been made to industry and commerce that backed the Modi administration, …, the circular of 7 July had to be pushed through to grant amnesty to major corporate environmental and human rights violators. They have willfully violated environmental norms knowing full well that they will be bailed out.”
“The very fact that the Madras high court has imposed a stay on the latest office memorandum is testimony to its illegal status,” Delhi-based environmental activist Manoj Misra said. “A memorandum of this nature is not only in the teeth of the EIA Notification 2006 but also of at least two apex court judgments that have been critical of any such move.” Considering environment ministry’s then minister Prakash Javadekar was replaced a day later, during the Cabinet reshuffle, Misra expressed hope that the new ministry “will not subscribe to such illegal acts”.
Bail-out schemes aren’t the preserve of the current government, to be sure. Previous governments have done so as well, particularly in 1998, 2000 and 2002. In January 1994, the Congress government at the Centre notified the first EIA rules – and the Congress was also in power in 2010 when Prime Minister Manmohan Singh’s government introduced a permanent procedure to grant post facto environmental and CRZ clearances to violators. These procedures were also issued through separate office memoranda in November 2010 and December 2012.
The National Green Tribunal quashed on July 7, 2015, holding that the environment ministry had stepped beyond its remit to issue the orders and that they violated the Environment (Protection) Act 1986.
Ayaskant Das is a journalist and author.