97085Preparing to challenge an environmental clearance – 4 essential steps
- Aug 22, 2014http://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
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
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
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: