Documentation & Procedural Aspects in Obtaining Environment Clearance Certificates: Lawyers Advice
Recent studies show that India lies on the precipice of a start – up boom and is home to the world’s third fastest growing start – up ecosystem. This is due to the various initiatives that have been taken by the governmental authorities to promote and endorse start-ups and other businesses.
Article 48 of the Indian Constitution, directs the State to “…endeavour to protect and improve the environment and safeguard the forests and wildlife of the country”. In pursuance of this mandate there are several environmental safeguards and procedures that are to be followed to obtain environmental clearance before setting up a business.
It is the Ministry of Environment and Forests (the Ministry), which reviews applications and grants environmental clearances in India. In addition to the Ministry, the National Green Tribunal (NGT) also plays a proactive role in overseeing the handing out of environmental clearances. The NGT has stayed several approvals of environmental clearance granted by the Ministry.
In Prafulla Samantray v. Union of India, Appeal No. 8 of 2011, the NGT held the granting of environmental clearance of the government to be irresponsible and stepped in to stay the environmental clearance that was granted.
In this light, a thorough understanding of procedural and documentary requirements for obtaining environmental clearance becomes especially significant. The following is a simplified elucidation of the same which will prove useful if you wish to start your business in India. –
• The first step involves the identification of the site of the proposed project. There are siting guidelines which are laid down by the Ministry for the setting up of industries. Compliance with the siting guidelines is an unavoidable pre – requisite, therefore if it is found that the project site that is chosen is not is compliance with the guidelines, the only course of action would be to find an alternate site for the project.
• The next step involves ascertaining whether the proposed project would require environmental clearance from the concerned authorities. To do this, the EIA Notification 2006, notified by the Ministry has to be consulted. The Schedule of the notification lists out the industries for which environmental clearance will be required. If your particular venture requires environmental clearance, an Environmental Impact Assessment report (EIA Report) will have to be prepared. This can be done either directly or through consultation with specialised agencies.
• The public is then given an opportunity to voice their concerns about the proposed project. This should be carried out in the form of a public hearing. The public hearing is heard by a committee of which the District Collector of the concerned district is the chairperson, and other officials include members of the development board of the district, members of the State Pollution Control Board, etc. Details of the hearing have to be included in the EIA report.
• In the case of Jeet Singh Kanwar v. Union of India (Appeal No. 10 of 2011, dated April 16, 2013), the petitioners challenged the environmental clearance that was given on the ground that the EIA report had not been made available to the public. The NGT held that due to the guidelines of the consultation process being ignored, the Ministry was wrong in granting environmental clearance. In Adivasi Majdoor Kisan Ekta Sangthan v. Ministry of Environment and Forests (Appeal No. 3 of 2011 (NEAA No. 26 of 2009) dated April 20, 2012), the NGT held that public hearing is an essential part in the process of arriving at the decision of whether to grant an environmental clearance or not.
• Once you have drawn up your EIA report, you must approach the concerned authorities for a No Objection Certificate (NOC). The EIA will be evaluated and assessed by the concerned pollution control boards. In case your project is located in designated forest lands, the approval of the Forest Department of the State concerned will also have to be sought. The concerned authorities will look into the negative impacts that the project is likely to have and the control measures that have been taken to minimise the same.
• It is important that during this step, the information that you include in the EIA Report is accurate and true to the best of your knowledge. In the case of M.P. Patil v. Union of India (Appeal Number 12 of 2012 dated March 13, 2014), the NGT found the National Thermal Power Corporation guilty of misrepresentation of facts in order to obtain environmental clearance from the authorities and observed that the steps taken to accommodate the needs of the affected people are not accurately represented and that the sustainable development goals should be borne in mind by the proposer of the project.
• Once all these steps have been taken, the documents are to be sent to the Ministry for its approval. The Ministry is required by law to consider the application of the proposer of the project within a period of 90 days. Once a decision is arrived at, the Ministry is then required to convey the same to the proposer within a period of 30 days.
If the process of public consultation is to be avoided, one can opt to set up their business in a Special Economic Zone. These zones are given environmental clearances for certain types of projects. If your business falls within one of those categories, then the process of public hearing can be skipped. This can ensure that unnecessary and time-consuming tussles with the Ministry can be avoided. Once all these procedural aspects are followed, the business operations can commence.
Authored By: Adv. Anant Sharma & Vismay G.R.N.