Does the National Green Tribunal (NGT) have jurisprudence over the Ministry of Environment and Forest’s (MoEF) subordinate legislation?

If the MoEF has any say, then no.

An affidavit filed by the MoEF in the ongoing case over amendments to the Environment Impact Assessment (EIA) notification, challenges the Tribunal’s jurisprudence of taking a decision on the issue. The affidavit was filed by the ministry last week.

The MoEF’s amendment exempts building projects over 20,000 square meters 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.

The amendment has been challenged in the Tribunal through multiple petitions. The Tribunal has been hearing the case since December last year.

On January 19, the ministry’s affidavit referred to a recent Bombay High court decision to challenge the same.

“It is submitted that the Division Bench of the High Court has held in its recent judgment…Wherein it has interpreted the scheme of the National Green Tribunal Act, 2010, specially the scope of Section 14, 15, 16, 17 and 18 of the National Green Tribunal Act, 2010 and has come to the conclusion that Tribunal has no jurisdiction to test the validity of a subordinate legislation issued by MoEF in exercise of its powers enshrined under the Acts of the Schedule I of the National Green Tribunal Act, 2010,” the Environment Ministry said.

Sections 14, 15, 16 and 17 of the NGT Act deals with the jurisdiction, powers and proceedings of the Tribunal.

“I am quite clear on the jurisdictional question. It was raised earlier too. In my view, the NGT does have the jurisdiction although a limited one. The NGT has passed a detailed judgement on the subject (earlier) which has not been overturned by the Supreme Court,” environmental lawyer Sanjay Upadhyay said.

The next hearing on the matter is scheduled for February 2.