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Legal Framework Regulating Environmental Clearances For Industrial And Infrastructural Projects In India

January 25, 2018

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In this article, Akanksha Mathur, a student of National Law University, Delhi, discusses the legal framework for environmental clearances for industries.

The early years of industrialisation led to production and economic growth at the cost of the environment. Throughout the years, a growing environmental consciousness has led to the conclusion that economic growth and environmental preservation are not mutually exclusive. To this end, the Indian Constitution laid down the responsibility of the State to protect the environment as a Directive Principle of State Policy under Article 48A and as a Fundamental Duty for citizens under Article 51A(g). Moreover, the Indian government has also passed laws regulating industries in order to preserve the environment and has passed some landmark legislation since the 1970’s.

Which Industries Are Subjected To Regulation?

Currently, environmental clearances are required for 29 types of projects specified in Schedule 1 of the Environment Impact Assessment Notification, 2006.

Moreover, the Central Pollution Control Board introduced a colour codification for industries depending on their impact on the environment. Industries were classified on a pollution potential index as red, orange, green and white industries. Only ‘white’ industries can function without seeking environmental clearances.

Environmental clearances are also required regardless of the type of project in areas which are ecologically fragile, such as-

Religious and historic places
Archaeological monuments
Scenic areas
Hill resorts
Beach resorts
Coastal areas rich in mangroves, corals, breeding grounds of specific species
Estuaries
Gulf areas
Biosphere reserves
National parks and sanctuaries
National lakes and swamps
Seismic zones
Tribal settlements
Areas of scientific and geological interest
Defence installations, especially those of security importance and sensitive to pollution
Border areas (international)
Airports.

Early Legislation

Pre-Independence

Environmental regulations in India received a began during British times, with the coming of the Industrial Revolution. These laws, however, were less protective of the environment and more oppressive for the native Indians. The Forest Acts of 1865 and 1927, for example, were the first laws protecting the forests, but focussed more on curtailing the customary rights of the local forest communities.

Criminal sanctions for water and atmospheric pollution were also introduced under the Indian Penal Code, 1860, along with a number of legislations in different Presidencies. Again, the aim of these laws was not to conserve the environment, but to restrict their use by the natives and allow their exploitation by the British.

Post-Independence

After Independence and before the 1970’s, the only environmental regulation in India was done by a few scattered regulations, a few Central and various State Acts.

Factories Act, 1948

The Factories Act, 1948 required factories to effectively manage waste disposal and gave State governments the ability to make rules under it.

River Boards Act, 1956

Under the River Boards Act, 1956, river boards were established to deal with the problem of pollution of rivers spanning multiple states.

State Acts

Some states also took steps to remedy environmental degradation by enacting their own legislation, such as the Orissa River Pollution Prevention Act, 1953 and the Maharashtra Prevention of Water Pollution Act, 1969.

Regulatory Framework

The 1970’s saw, for the first time. The formulation of comprehensive policies and legislation for the preservation of the environment.

Legislations

Wildlife Protection Act, 1972

The Wildlife Protection Act, 1972 was aimed at a modern and rational management of wildlife.

The Act established a network of ecologically-important protected areas where industrial activity was absolutely banned and provided protection to listed species of flora and fauna. The government was given the power to-

Declare any area as a wildlife sanctuary, national park or closed area
Regulate the hunting of wild animals. This led to a prohibition on the hunting of animals except with prior permission when an animal has become dangerous to human life or property or disabled beyond recovery.
Restrict trade in animals and animal artifacts.

A permit is required for any activity such as mining, industry or infrastructure that is likely to destroy or harm any wildlife or their habitat in a Protected Area, or divert, stop or enhance the flow of water in a Protected Area.

Water (Prevention & Control of Pollution) Act, 1974

The Water (Prevention & Control) Act, 1974 was enacted in order to prevent water pollution. A landmark legislation, it introduced pollution control boards at the Central and State level to prevent and control pollution of water bodies under the provisions of the Act. It also set up standards for the discharge of sewage and effluents into water bodies.

Before establishing any industry or conducting any operation or process that may discharge effluents in water bodies, a Consent to Establish (CTE) is required to be acquired for the State Pollution Control Board. This regulates the nature composition temperature, volume and rate of discharge permitted into water bodies.
After the establishment, a Consent to Operate (CTO) must be obtained before the commencement of operations.

Forest Conservation Act, 1980

The Forest Conservation Act of 1980 aimed to promote social forestry and place checks on deforestation and the use of forest land for non-forestry purposes. The powers of the State to de-reserve forests and use them for non-forestry purposes were restricted.

Permission is required to be obtained from the Central government by both governmental and non-governmental bodies for de-reservation or diversion of forestland for non-forest use and the felling of trees.
A Forest Clearance is required to be obtained containing specific conditions for compensatory afforestation and rehabilitation of affected people.

Air (Prevention And Control Of Pollution) Act, 1981

The Air (Prevention And Control Of Pollution) Act, 1981 was enacted in order to combat air and noise pollution. It allowed for the establishment of air pollution control standards and Air Pollution Control Areas, where industries could not be set up without the requisite permissions.

Before the establishment of any industry, a CTE is required to be obtained from the SPCB specifying the specifications, installation and operation of control equipment for air pollution.
Before the operation is supposed to begin, a CTO must be obtained as well.

Environment (Protection Act), 1986

The Environment (Protection) Act, 1986 was introduced as a comprehensive umbrella legislation to preserve the air, water and land. The framework provided by the Act allowed for coordination between the central and state authorities established under the Water (Prevention and Control) Act, 1974 and Air (Prevention and Control) Act, 1981. To control pollution and protect the environment, central government could-

Set standards for emissions and discharges
Regulate the locations of industries
Close any factory or stop any of its activities or cut any supply, including water and electricity to it under Section 5.
Regulate the management of hazardous waste

The Act also contained punitive provisions under Section 15.

To fulfil its obligations under the Environment (Protection Act), 1986, the government periodically issues notification such as the-

Doon Valley Notification (1989)

This notification prohibited the setting up of an industry in which the daily consumption of coal/fuel is more than 24 MT (million tonnes) per day in the Doon Valley.

Coastal Regulation Zone Notification (1991)

It regulated activities along coastal stretches. As per this notification, dumping ash or any other waste in the CRZ is prohibited. The thermal power plants (only foreshore facilities for transport of raw materials, facilities for intake of cooling water and outfall for the discharge of treated wastewater/cooling water) require clearance from the MoEF.

Revdanda Creek Notification (1989)

It prohibited the setting up industries in the belt around the Revdanda Creek as per the rules laid down in the notification.

Taj Trapezium Notification (1998)

It provided that no power plant could be set up within the geographical limit of the Taj Trapezium assigned by the Taj Trapezium Zone Pollution (Prevention and Control) Authority.

Disposal of Fly Ash Notification (1999)

Its main objective is to conserve the topsoil, protect the environment and prevent the dumping and disposal of fly ash discharged from lignite-based power plants.

Environment Impact Assessment Notification (2006)

The Environment Impact Assessment Notification, 2006 was notified under the Environment (Protection) Act of 1986 and was meant to supercede the Environment Impact Assessment Notification of 1994. It lay down a comprehensive procedure for obtaining Prior Environmental Clearance for the establishment, or expansion of a project. Under this notification, approval for environmental clearance from the Ministry of Environment and Forests (MoEF) is required for-

- All projects listed under Schedule 1
- All developmental projects in fragile areas
- Industrial projects with more than a Rs. 500 million investment. They must also obtain a Letter of Intent from the Ministry of Industry, and NOCs from the State Pollution Control Board and the State Forest Department if the project involves forestland.
- Site clearance and final environmental clearance for the establishment and operation of any new power plant.
- Depending on their size and capacity, industries are divided into the A and B categories. Category A projects are given clearances from the MoEF while those in B are given clearances by the State Environment Impact Assessment Authority (SEIAA).
- Applications are screened by various Expert Appraisal Groups constituted at the Central and State levels.

Biological Diversity Act, 2002

The Biodiversity Act of 2002 was enacted by the MoEF as a part of India’s international obligations under the United Nations Convention on Biological Diversity to ensure the conservation of biological diversity, the sustainable use of its various components, and fair and equitable sharing of the benefits arising from biological resources and knowledge.

Under the Act, areas that are ecologically and biologically diverse were to be identified and designated as biosphere reserves to enable conservation.

Government Rules

Ozone Depleting Substances (Regulation And Control) Rules, 2000

These rules were notified by the MoEF under Sections 6,8 and 25 of the Environment (Protection) Act, 1986 to fulfill India’s commitments under the Montreal Protocol. To regulate Ozone Depleting Substances, restrictions have been placed on their trade, manufacture and use.

Hazardous Wastes (Management And Handling) Amendment Rules, 2003

The Hazardous Wastes (Management And Handling) Amendment Rules, 2003 were enacted for the proper disposal and handling of hazardous waste. Authorization is required to be sought from the relevant SPCB for the disposal.

Hazardous And Other Wastes (Management and Transboundary Movement) Rules, 2016

The Hazardous And Other Wastes (Management and Transboundary Movement) Rules, 2016 lay down approval processes for the management and transportation of hazardous wastes.

An authorization is required from the SCPB for the handling, generation, storage and treatment of hazardous wastes.
It also provided for the establishment of a Treatment, Storage and Disposal Facility for the treatment, storage and disposal of hazardous waste.

Solid Waste Management Rules, 2016

Superseding the Municipal Solid Wastes (Management and Handling) Rules, 2010, the Solid Waste Management Rules, 2016 lay down regulations for handling solid waste. They allowed for the setting up facilities for the processing and disposal of solid waste with the approval and authorization of the SPCB.

Groundwater Extraction Regulations

The Groundwater Extraction Regulations were issued by the Central Groundwater Authority and allowed for permission to be sought for abstracting groundwater for any industrial of infrastructural operation.

Under them, areas were to be identified as Notified and Non-Notified Areas. In Notified Areas, permission to use groundwater is only given for drinking and domestic use. The conditions for permission are dependent on the area and kind of industry sought to be established.

In case of Notified Areas, a No Objection Certificate is required to be obtained from the Authorized Officer such as the District Magistrate / Deputy Commissioner / District Collector in an Administrative Block or Taluka or Head of a Municipality in a Municipal Area.
NOCs are also required for Non-Notified Areas, but are only issued for two years, with the ability to be renewed for another 3 years.

Moreover, some States too have their own legislations for the use and management of groundwater, such as the Karnataka Groundwater (Regulation and Control of Development and Management) Act, 2011 in Karnataka and the Maharashtra Groundwater (Development and Management) Act, 2009 in Maharashtra.

Regulatory Authorities

National Environment Tribunals

The National Environment Tribunals Act, 1995 allowed for the setting up of 4 National Environment Tribunals benches at Delhi, Calcutta, Madras and Bombay for the speedy disposal of environment-related cases.

The Act also made entities absolutely liable for any damage arising from any accident occurring from the mishandling of hazardous wastes.

National Environment Appellate Authority

The National Environment Appellate Authority Act of 1997 provided for a National Environment Appellate Authority (NEAA) to hear any appeals regarding the safeguards or restrictions placed on industries, activities or processes

International Obligations

India is also a signatory to a number of international multilateral international agreements, such as the-

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 1973
Montreal Protocol on Substances that Deplete the Ozone Layer (to the Vienna Convention for the Protection of the Ozone Layer), 1987
Basel Convention on Transboundary Movement of Hazardous Wastes, 1989
UN Framework Convention on Climate Change (UNFCCC), 1992
Convention on Biological Diversity, 1992
UN Convention on Desertification, 1994
International Tropical Timber Agreement and The International Tropical Timber Organisation (ITTO), 1983, 1994

How To Submit Proposals for Environmental Clearances

An online application for environmental clearances can be made by registering at the MoEFCC website here.

Legal Framework Regulating Environmental Clearances For Industrial And Infrastructural Projects In India

Which Industries Are Subjected To Regulation?