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97085Preparing to challenge an environmental clearance – 4 essential steps

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  • Tanya Mahajan
    Aug 22, 2014
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      http://blog.mylaw.net/how-to-challenge-an-environmental-clearance-four-essential-steps/


      Preparing to challenge an environmental clearance – four essential steps


      One winter morning, news arrived that environmental clearance had been
      granted for a steel plant that had been contested for nine and half
      years. After the change of guard at the Ministry of Environment and
      Forests (“MoEF”) ahead of the general elections, newswires had been
      abuzz that India’s largest foreign direct investment would finally
      come in. Now, the grinding sounds of iron being converted to steel
      would soon replace thriving agricultural and fishing economies in
      ecologically fragile coastal Odisha.


      Questions fluttered to all quarters. The movement resisting the plant
      had no access to the formal documents based on which the Minister had
      granted approvals and support groups began to put their minds to the
      next step.


      Being up to speed on where and how fast files move within a regulatory
      agency is a test that community groups and interested individuals face
      all the time. Public disclosure is subject to the technical acumen of
      website managers, regular tracking through Right to Information
      applications, or simply through tip-offs from informal sources. But
      for all the actors who feel the impact of the grant of an environment
      clearance or who seek to legally challenge it in courts, the clock
      starts ticking once the approval has been granted.


      Several projects, including Posco’s USD 12 billion steel plant in
      Orissa, received environmental clearances during Veerappa Moily’s
      brief stint as the Union Minister for Environment and Forests.


      What does this permission really mean? Environment clearance is the
      approval that a wide range of industries, mines, dams, or
      infrastructure projects receive after a process listed out under the
      Environment Impact Assessment Notification, 2006 (“EIA notification”)
      is completed. The MoEF is the granting authority for a set of Category
      A projects and for Category B projects, it is the State Environment
      Impact Assessment Authorities (“SEIAAs”). No construction activity can
      be initiated unless an environment clearance letter has been procured.


      More often than not, social movements and civil society groups who
      have either been objecting to the grant of this permission or would
      like to do so at the time of the clearance, have to put together a lot
      of paperwork and information, if they are to stand any chance in a
      court of law. First of all, they have to access the clearance letter
      itself. Case law now requires that the environmental clearance is not
      just made available to the relevant panchayat and relevant information
      published in two newspapers, project authorities now need to publish
      the full clearance letter in newspapers.


      Once there is access to the letter, it needs to be backed up with hard
      evidence and analysis to help prepare the legal grounds of challenge.
      Who faltered and how? Why would anyone be aggrieved? Did the
      regulatory agencies play the part they were mandated to? Across the
      country, there are a range of experiences of how people go about
      gathering the necessary evidence or file in the required documents.
      The process starts from the time they lay their hands on the
      Environment Impact Assessment document to finding out what transpired
      at public hearings and how expert bodies reviewed baseline data
      presented in EIAs and independent critiques of EIA documents. The
      journey of many project clearances in the country is often a closely
      observed narrative. Unfortunately, they do not always stand up to
      robust judicial scrutiny.


      Challenging an environmental clearance in a court or a tribunal
      requires covering a few basic grounds. The peculiarities of any
      specific case aside, the following are essential to understand whether
      ‘there is a case’ for aggrieved persons to challenge an environmental
      clearance.


      Chronology of facts


      The first is the bare chronology of facts from the time the project
      authority submits the application form (Form 1 or Form 1 A) under the
      EIA notification. Trace the trajectory of the environment clearance

      paperwork and events. When were the Terms of Reference (“ToR”) for the
      EIA report approved and granted by MoEF or SEIAA? Did it match the
      draft ToR provided by the project proponent or was a model ToR used?
      When was the public hearing held? Finally, how did the file move
      within the regulatory agency, especially with the Expert Appraisal
      Committees (“EACs”) reviewing the project?


      One critical component of this chronology is the file notings and
      notesheets of the MoEF or the SEIAA indicating the process of
      decision-making. Sometimes, the remarks made by a minister or a
      higher-level official approving or rejecting the project at any given
      stage can prove to be an important piece of evidence. Increasingly
      with inter-ministerial differences, officials and ministers have
      recorded their dissenting notes, to approve or reject a project’s
      environmental clearance.


      Clear set of critiques of three documents


      It is also important to prepare a clear set of critiques and analysis
      of three crucial documents that need to be reviewed, by themselves and
      in comparison to each other. They are (a) the application form (Form I
      and IA), (b) the ToR for the EIA, and (c) the EIA itself. For
      instance, is the baseline data in the application form correct and do
      the ToR do justice to the scope of the project? Does the EIA conform
      to both the application form and the ToR at the very least? A full
      critique of the EIA itself has stood many legal challenges in good

      stead. For instance, whether the EIA is a copy-paste of another and
      whether it hides or suppresses facts is an important basis to argue
      about the lack of rigour in the impact assessment.


      Scrutiny of public hearings


      Public hearings and other related submissions also require complete
      scrutiny. This third phase of an environment clearance, where the law
      requires a free, fair, and transparent process, usually leaves much to
      be desired. The EIA notification mandates that a public hearing of the
      project be carried out in such a way that it ensures maximum amount of
      participation. To start with, some key questions that can be asked
      include whether or not the minutes of the public hearing reflect the
      actual objections that arose during the public hearing. For this, the
      law mandates a proper video recording of the public hearing. In many
      important decisions, the judicial body has asked for fresh public
      hearings if procedural lacunae are proved.


      In an ideal scenario, it would be critical to record any objection to
      faulty minutes or process around the time the public hearing is held
      and bring it to the notice of the regulatory authority and any expert
      committee. It may not guarantee immediate redressal, but it would push
      the Expert Appraisal Committee (“EAC”) to acknowledge these issues and
      ask the project authority to respond to them.


      Track EAC proceedings


      The fourth set of proceedings to track is what transpired in the
      meetings of the Expert Appraisal Committees (“EAC”), both at the Union
      and the state when they appraised the application, the ToR, the EIA,
      the public hearing objections, and any other written submissions. At
      present there are nine thematic EACs for Category A projects and each
      SEIAA constitutes a separate State Level EAC (“SEAC”) that appraises
      all documents, ascertains their impact, and takes a decision on
      whether or not to approve a project. If a project is approved, the EAC
      recommendations contain a list of conditions that the project
      authorities have to comply with during construction or operation of
      the project. There is clear case law emerging from the Southern Zone
      bench of the National Green Tribunal that EACs need to respond to all
      objections raised at the public hearing and record reasons for
      agreeing or disagreeing with them. How the EAC conducted itself and
      what they based their decision on, are important pieces of evidence in
      questioning the application of mind of this expert body, when a matter
      lands up in litigation.


      When the courts or the NGT resume work each morning, many of the words
      referred to here, including ‘appraisal’, ‘public’, ‘impact’, and
      ‘scrutiny’, will be stated and redefined by judicial interpretations.
      These interpretations will establish an entirely new jurisprudence
      around EIAs and the notification that guides it. The fate of the
      farmers of small plots of paan kheti (beetle vine farming), which the
      Union Minister for Environment and Forests sought to seal on a winter
      morning, now hangs in the balance before the Delhi bench of the NGT.


      Kanchi Kohli (kanchikohli@...) is an independent researcher and writer.


      This entry was posted in Human Rights and tagged environmental impact
      assessment, environmental law, Kanchi Kohli communities and legal
      action, public hearing on August 22, 2014.- See more at:
      http://blog.mylaw.net/how-to-challenge-an-environmental-clearance-four-essential-steps/#sthash.9KEmqXSA.dpuf