Environmental Impact Assessment in India - Aagati Consulting


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Environmental Impact Assessment in India - Aagati Consulting

  1. 1. Environmental Impact Assessment in India Legal framework and Role of the Green Tribunal 3rd November 2011AMITY Law School Valé Valérie BERLANDNoida, IndiaNoida, Founder, Aagati Consulting Founder, France/ nce/India France/India
  2. 2. Origin of environmental concern in India Indian Constitution, 1950 Article 21 Protection Of Life And Personal Liberty Article 48A Protection and improvement of environment and safeguarding of forests and wildlife safeguarding Article 51A (g) Fundamental duties of every citizen of India “To protect and improve the natural environment including forests, lakes, rivers and wild life” (Stockholm) United Nations Conference on the Human Environment, 1972 (Stockholm)Taking appropriate steps for the protection and improvement of human environment (Rio United Nations Conference on Environment and Development, 1992 (Rio de Janeiro)Calling the States to develop national laws regarding liability and compensation for the victims of pollution Ancient tradition
  3. 3. Legislative framework and Environmental PolicyComprehensive legal framework for dealing with environmental issues relating to forests,biodiversity, water, air...Core legislations : The Environment (Protection) Act 1986 (“EPA”); (“EPA” The National Green Tribunal Act, 2010; Water (Prevention and Control of Pollution) Act, 1974 (“Water Act”); The Air (Prevention and Control of Pollution) Act, 1981 (“Air Act”); The Wildlife (Protection) Act; 1972, The Public Liability Insurance Act, 1991; The Forest (Conservation) Act, 1980; National Environment Policy, 2006 (NEP)
  4. 4. Administration/EnforcementAdministration/Enforcement of environmental laws Ministry of Environment and Forest (MoEF) – nodal agency of the Government of India (MoEF MoEF) regulating and ensuring environmental protection; formulating the environmental policy framework in the country; undertaking conservation & survey of flora, fauna, forests and wildlife; and planning, promoting, co-ordinating and overseeing the implementation of environmental and forestry programmes. CPCB = Central Pollution Control Board – statutory authority attached to the MoEF SPCB = State Pollution Control Board prevention and control of industrial pollution various authorizations from PCB are required prior to starting operate an industry under the Water Act, Air Act, etc. The courts are responsible for enforcing environmental laws National Green Tribunal since July 2011
  5. 5. Act, Environment (Protection) Act, 1986 (EPA) An Act to provide for the protection and improvement of environment and for matters connected therewith“ENVIRONMENT” includes water, air and land and the inter relationship which exists ENVIRONMENT”among and between water, air and land and human beings, other living creatures, plants,micro-organism and property’Central Government has the power to take all measures for the purpose of protecting andimproving the quality of the environment and preventing, controlling and abatingenvironmental pollution
  6. 6. Origin of the EIAEnvironment (Protection) Act, 1986Environment (Protection) Rules, 1986Restriction on industrial location, operations or processesSet specific standards to restrict the amount of pollutants emitted by industrialoperationsEIA Notification, 1994EIA Notification, 2006Construction of new projects or activities or the expansion or modernizationof existing projects or activities listed in the Schedule to the notificationentailing capacity addition with change in process and or technology shallbe undertaken in any part of India only after the prior environmentalclearance from the Central Government or by the State Level EnvironmentImpact Assessment Authority.
  7. 7. EIA Notification, 2006 A management tool for ensuring optimal use of natural resources for a sustainabledevelopment. Environmental Impact Assessment in the basis on which an environmental clearance canbe obtained Objective: To control the development of industrial activities following the principles ofsustainable development Applicability Mining, extraction of natural resources and power generation Primary processing Materials production (ex: cement plant) Materials processing (ex: petroleum refining industry) Manufacturing/ Fabrication (ex: chemical fertilizers, distilleries) Services sector (ex: oil & gas transportation pipe) Infrastructures (ex: airports, ports, highways) Building/ Construction projects/ Area Development projects and Townships
  8. 8. EIA Notification, 2006 Objectives of an EIA Undertaken by the project proponent Carried out by agencies : newly accredited environmental consultancy firmsNABET (National Accreditation Board for Education and Training) is the first organization in the world to offer registration of consultant organizations in various conformity assessment areasThe Environment Impact Assessment (EIA) Consultant registration is the first of its kind in the world Areas studied in an EIA: land, water, vegetation, fauna, air, aesthetic, socio economic aspects, etc.Based on primary and secondary environmental data
  9. 9. Example: Example: Ports and Harbours2 categories:based on the spatial extent of potential impacts and potential impacts on human healthand natural and man made resourcesThese activities require prior EC from:Central EIA Authority for category AState EIA Authority for category B
  11. 11. To make the clearance effective…process more effective… Problems related to the EIA method Which solutions? Institutionalize regional and cumulative environmental impact assessments assessments Assess the potential for chemical accidents ssess Projects involving large-scale diversion of prime agricultural land would require large- environmental appraisal Encourage clustering of industries
  12. 12. effective…To make the clearance process more effective…Restrict the diversion of dense natural forests and areas of high endemism of geneticresourcesEnsure provision for environmental restoration after decommissioning of industries and decommissioninginstitutionalize a system of post-monitoring of such projectsFormulate codes of “good practices” for environmental management for different practices”categoriesRepresentation of non-government organizations in the committee of expertsOpposition to centralization of EIA by the establishment of environmental courts that willexamine the impact and resolve the disputes in appeal
  13. 13. Rights to appeal against the decision of the MoEF not to grant ECAny person who owns or has control over the project with respect to which anapplication has been submitted for environmental clearance and is aggrievedby an order for the same, may within 30 days from the date of such order,prefer an appeal to the Authority Authority.The regulations dealing with the grant of licences/authorisations include provisions forappeal where:licences/permits are not granted by the concerned authority; oragainst any onerous conditions contained in the licences/permit.The appeal lies to the higher authority within 30 days from the date of the order againstwhich the appeal is to be filedCase of the Navi Mumbai Airport
  14. 14. Violation of permits Enforcement powers of environmental regulators The Indian regulatory framework recognizes civil and criminal liability that can arise from breach of environmental laws and/or permits. Most situations of non compliance are governed by civil sanctions Criminal processes and sanctions would be available for serious infringements of environmental law (“public nuisance”). In case of enforcement of civil liability the aggrieved person is entitled to(i) a common law tort action against the polluter;(ii) in the event of damage from hazardous industry accident an application for accident, compensation under Public Liability Insurance Act, 1991 and the National Green Tribunal Act, 2010
  15. 15. National Green TribunalThe National Green Tribunal Act (NGT) was established in 2010 under Indiasconstitutional provision of Article 21, which assures the citizens of India, the right to ahealthy environmentAn Act to provide for the establishment of a National Green Tribunal for the environmentaleffective and expeditious disposal of cases relating to environmentalprotection and conservation of forests and other natural resources includingenforcement of any legal right relating to environment and giving relief andcompensation for damages to persons and property and for matters connectedtherewith or incidental thereto.Began functioning on 4th July 2011 with the initial support of the MoEFHeadquartered in Delhi, the tribunal has four circuit branches in Bhopal, Pune, Kolkataand Chennai
  16. 16. National Green TribunalWhy has it been created ? Other courts: no expertise, overloaded, time linesThe Tribunal has dedicated jurisdiction over all civil cases in respect of environment- environment-related cases and shall provide speedy environmental justice and help reduce the burdenof litigation on the higher courtsDisposal within 6 monthsNGT shall be guided by principles of natural justiceThe tribunal consists of:One Chairperson(appointed by Central Government in consultation with the Chief Justice of India)10 to 20 full time Judicial Members(Judges of the Supreme Court of India, Chief Justice of a High Court)10 to 20 full time Experts Members(Experts with a Master or Doctorate Degree along with 15 years experience)
  17. 17. National Green TribunalThe Tribunal will provide:Relief and compensation to the victims of pollution and other environmental damageFor restitution of property damagedFor restitution of the environment for such areasRecently, the MoEF, based on the findings of the Tribunal, had cancelledenvironmental clearance granted to projects such as the Goa-based iron mine of theVedanta Group
  18. 18. Green Tribunals around the worldAcross US & Europe, the adjudication of environmental disputes is being done thetraditional way i.e. through normal courts with designated environmental benchesIndia is playing a leading role in Asia with its NGT being the most comprehensive andpromising among the specialized environmental Courts created in Asia over the lastdecadeThe most important feature of the NGT is that it has equal judicial and technicalmembers giving strong scientific expertise to environmental adjudicationThe NGT has been set up primarily as a reform initiated by the Supreme Court of IndiaConfirms the commitment of the Indian legal system to environmental protectioni.e. significant growth in the access of Indian citizens to environmental justice environmental
  19. 19. THANK YOU FOR YOUR ATTENTION Valerie BERLAND Founder, Aagati Consulting Email: valerie.berland@aagati.com Website: www.aagati.com