Until December 6, 2016, here’s how construction worked: For building projects above 20,000 square meters of built-up area, the builder required an environment clearance from a State Environment Impact Assessment Authority (SEIAA). The process involved applying for a clearance before starting the construction activity. The application would then be appraised by the State level Expert Appraisal Committee (SEAC).

The project would also require a “consent to operate” under Air and Water Acts by the state pollution control board. Only after getting these clearances could one start construction.

Now, however, the issue of an environmental clearance is stuck in limbo.

In an ongoing case in National Green Tribunal (NGT) over the amendment made to the Environment Impact Notification (EIA), 2006, an amendment introduced by the Ministry of Environment and Forest (MoEF) is being contested. The NGT has warned the ministry about granting clearance under the new notification, essentially freezing the clearance process.   

The MoEF’s amendment exempts building projects from requiring an EC from either the ministry or a State Environment Impact Assessment Authority (SEIAA). Now the process will be done at a local development or municipal authority. The MoEF will accredit agencies (which may be either private or public bodies) as Qualified Building Environment Auditors “to assess and certify the building projects.” The final word, however, will rest with local authorities.

There are two central problems with the amendment. One is impact on environment and the other is its legality. The EIA notification is a sub-clause in the Environment Protection Act, while Air and Water Acts are laws. The MoEF cannot do away with the consent requirements under Air and Water Acts.

On December 26, 2016, the Society for Protection of Environment Biodiversity, an NGO involved with environmental justice, challenged the MoEF in NGT. A petition was also filed on this issue by environmental lawyer Ritwick Dutta on December 29, 2016. In a hearing of the case on January 2, 2017, Dutta raised the issue of the notification being significantly different from its April 26 draft.

“On a para-wise comparison of the two notifications… it is clear that the two are completely different in their import and effect,” he said. The draft made consent under the Air and Water act necessary for construction projects. This was done away with in the final notification. The final version also made provisions that would have environmental violations come under state laws and not the Environment Protection Act.

The Tribunal has merged the two petitions and will now be hearing them together.   

While the MoEF has filed its affidavit in the court, another respondent, the Central Pollution Control Board (CPCB) hasn’t done so. Given the fact that the CPCB is the nodal authority under the Air and Water Acts, its response will have a huge bearing on the case.  

The case was heard by NGT chairperson Swatanter Kumar on January 5, 2017. Pleading for the MoEF was advocate Divya Prasad Pande, who was grilled by Kumar.

“You tell us what power you have to do away with the application of Air and Water act?” asked Kumar. In MoEF’s defence, Pande said that according to 2012 Delhi High Court order, consent under the Air and Water Acts are not needed for residential building projects. This would mean the amendment doesn’t interfere with the Air and Water Acts.

The bench pointed out that the MoEF was using a Delhi High Court order applicable only to Delhi, while any judgement by NGT applies to the entire nation. Therefore the counsel was arguing the case using an order which has lesser territorial scope than an NGT order. The chairperson also said that the MoEF had accepted the Tribunal’s judgements in the past and not challenged them in the Supreme Court.

The chairperson was referring to the Tribunal’s orders in the Wilfred J Vs MoEF case and in the case of SP Muthuraman Vs Union of India & Others. In these judgements, the Tribunal had decided against the amendments proposed by the MoEF.

Pande’s central argument was that an expert committee had considered both the NGT and High Court orders before coming up with the new notification.

However, he was called out by the counsel for the petitioner, Sanjay Upadhyay. Upadhyay countered that the expert committee, lacking any legal expert, was not in a position to comment on the legality of the issue. He also urged the Tribunal to put a stay on the notification.  

“Given the fact that they have already changed the by-laws, we are sure they will start giving clearances under the new notification,” said Upadhyay.

Upadhya’s anxieties are on point. Delhi Development Authority has already changed its building by-laws. Back in March, DDA issued new unified building by-laws which exempt building projects from needing environment clearances.     

The hearing ended with the chairperson asking the MoEF counsel how the ministry can they do away with the requirement for consent under Air and Water act by amending a notification. The respondents have till the next hearing, on January 12, to come up with an adequate explanation. Failing that, Kumar has threatened to put a stay on the notification.     

“In case even a single clearance is granted under the new notification, you come to us,” he said.

Mind it.