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India law news fall issue

  1. 1. India Law News A quarterly newsletter of the India Committee VOLUME 2, ISSUE 4, FALL 2011INTRODUCTION TO ENVIRONMENTAL LAW AND POLICY IN INDIA AT THEEND OF 2011By Dr. Armin RosencranzGuest Editor interest litigators led by Supreme Court advocate M. C. ndia’s environmental laws are administered Mehta. Since 2000, however, the courts have become jointly by a weak and understaffed Central markedly less hospitable to public interest litigation Pollution Control Board; State Pollution Control (“PIL”). In several recent cases, judges have dismissedBoards (“SPCBs”) of varying strengths, capacities, and PIL petitions as frivolous or motivated by personaleffectiveness; and the central government’s Ministry of gain.Environment and Forests (“MoEF”). The MoEF has thepower to issue environmental clearances—allowing a In 2010, India’s central government launched thedevelopment project to go forward, for example, first major overhaul of environmental governance anddespite its noncompliance with environmental laws or management since 1986. It proposed, and Parliamentregulations. enacted, the National Green Tribunal Bill, creating a kind of “supreme court” of environmental law. Also in Article 21 of the Indian Constitution guarantees the 2010, the MoEF proposed a new institution forright to life, which the courts have interpreted as environmental management, compliance, andincluding the right to a healthy environment. The enforcement, to be called the National Environmentconstitution also enables any citizen or group to bring Protection Authority (“NEPA”). Among otheran interlocutory appeal directly to the High Court of innovations, NEPA would have instituted a civileach state or to the Supreme Court if a constitutional administrative process to impose sanctions onquestion is raised. polluters. The courts have been reluctant to punish polluters and have even denied SPCBs the power to Most environmental cases, especially between 1980 impose penalties by finding ambiguities in theand 2000, have been brought by a small band of public Environmental Protection Act. The draft NEPA bill,India Law News 11 Fall 2011
  2. 2. however, was withdrawn and replaced with a much (Dahanu Taluka Environmental Protection Group v. BSES,milder and toothless proposed agency, the National 1991) the respective judges made clear that it is not theEnvironment Assessment and Monitoring Agency job of the Court to interfere in these development(“NEAMA”), discussed in the Kohli-Menon article in activities: they raised scientific and technical issues andthis issue. policy matters, which are best left to the executive agencies. The views expressed by judges in all The Supreme Court of India is undoubtedly the environmental litigation concerning infrastructuremost activist court in the world, which has led it to projects have supported the government’s assertionissue sweeping decisions in favor of environmental that it must carry out its development activities, such asprotection. In the Ganges water pollution case, a bench dams and power plants, in the national interest.of the Supreme Court, while directing that severaltanneries be closed down for discharging untreated In these cases, the judges seem complicit with theeffluents into the Ganges River, held that “we are executive branch in subordinating environment toconscious that closure of tanneries may bring development. For example, in the Tehri Dam case, theunemployment (and) loss of revenue, but life, health government’s own expert committee had identifiedand ecology have greater importance to the people.” several violations of the conditions that the MoEFM.C. Mehta v. Union of India (Kanpur Tanneries) 1988. imposed on the project before granting an environmental clearance, but the majority judgment The justices appear to have exceeded their allowed the government to construct the dam anyway.constitutional boundaries (and customary separation of Similarly, in the Dahanu case, the Supreme Court didpowers) in at least two areas, however. In the so-called not follow the MoEF’s Appraisal Committee report,Delhi Pollution Case (2002), the Court preempted which declared that Dahanu was unsuitable for theexecutive authority over air pollution and ordered all construction of a thermal power plant as it did not meetbus companies in the capital city of Delhi to power environmental guidelines. In the Narmada Dam case,their buses with compressed natural gas (CNG) rather the dissent urged that construction of the dam shouldthan petroleum or diesel fuel. In T. N. Godavarman not be allowed because it violated environmentalThirumulkpad v. Union of India, instituted in 1995, the guidelines. The government had not providedSupreme Court took on the issue of forest cover and environmental impact assessments for the constructionfound itself issuing orders dealing with the rights of of the dam and the government’s report onforest dwellers, employment in the wood products and rehabilitation and resettlement measures for thetimber industries, and the respective powers of federal “oustees” were arguably insufficient.and state forestry officials. The case is on a “continuingmandamus,” meaning that the case remains open for Indian lawyers and scholars have begun to re-court orders and actions relating to it; the Court has examine the most flagrant example of judicial activism,issued new orders flowing from the case virtually namely Godavarman, which has affected all forestevery week since 1995. cover, all forest dwellers, and the timber and wood product industries through India for more than 15 The Supreme Court’s assumption of executive years. While the concern for forest conservationpower in these cases contrasts with the judiciary’s provided the initial justification for judicialinvariable approval of, or deference to, the executive intervention, it has led the Supreme Court to effectivelyregarding all large infrastructure projects. take over the day-to-day governance of many aspectsNotwithstanding the occasional court defense of clean of Indian forests, far beyond anything that may beair, water, and forests, and protection of people’s access justified constitutionally. The outcomes for the foreststo common or protected spaces, there seems to be an have been mixed, and the jurisprudence is ofinherent pro-development bias today in the High questionable quality, highlighting the dangers ofCourts and the Supreme Court. judicial overreach. In the cases of the Tehri (TBVSS v. Uttar Pradesh, In this issue of India Law News, judicial activism1992) and Narmada (Narmada Bachao Andolan v. Union and the government’s strong pro-development bias areof India, 2000) dams and the Dahanu Power Plant explored in five of the six main articles, namely theIndia Law News 2 Fall 2011
  3. 3. Kohli-Menon article on NEAMA, already mentioned, article by Patodia explores India’s internationalarguing for a complete regulatory overhaul; the Sahu negotiations on global climate change.article on environmental governance through thecourts; the Shroff-Jejurkar article on whether India’s Dr. Armin Rosencranz is the guest editor for thisenvironmental law lacks teeth: they conclude that it issue of India Law News. He has published severalworks pretty well; the Singhania-Jaimini article on the books and numerous articles on issues relating toLafarge mining case, which they believe demonstrates climate change and environmental law, particularlythe Supreme Court’s wise direction of that case, as well in South Asia, and has been affiliated with severalas former environment minister Jairam Ramesh’s universities in the U.S. and around the world. Dr.appropriate stand on granting or withholding Rosencranz is currently a Consulting Professor ofenvironmental clearances; and the Saldanha article on International Relations at Stanford University andthe government’s implicit support for Monsanto and may be contacted at armin@stanford.edu.genetically modified foods, in spite of the provisions ofthe Biological Diversity Act and the apparentlyineffective National Biodiversity Authority. A sixthIndia Law News 3 Fall 2011
  4. 4. CO-CHAIRS’ COLUMN CONTENTS OVERVIEW elcome to the India Committee! 4 Co-Chairs’ Column This issue of India Law News marks a period of transition in ________ ________the leadership team of the India Committee. Our founding co-chair, ErikWulff, has assumed the role of senior advisor. It is difficult to capture all COMMITTEE NEWSthat Erik has accomplished in his tenure, but simply put we could nothave had a stronger and more dynamic leader. Over the past two years, 35 Submission RequestsErik gave so much of his time, expertise, and experience to making theIndia Committee one of the most dynamic and engaged committees in 36 India Committeethe Section of International Law. One need only consider the largenumber of awards that the Committee received from the Section to ________ ________understand how valuable Erik has been to the growth and success of the SPECIAL FOCUSCommittee. Just as importantly, he navigated some difficult issues thatconfronted the Committee with statesmanship, humility, and resolve. As 1 Introduction to Environmental Law and Policy in India at the End of 2011a result of his commitment, we are well-positioned to continue the workthat Erik started to forge mutual understanding among lawyers in India, 6 Environmental Law in India – Does itthe U.S., and beyond. On behalf of the Committee membership, we Lack Teeth?thank Erik for his outstanding leadership. 14 The Implementation of Environmental Judgments Fortunately, Erik will continue to serve as one of the Committee’smost active members by leading the Committee conference in Mumbai 18 LaFarge Decision – Light at the End ofon January 20-21, 2012. We have received substantial support from ABA the Tunnel?leadership and many cooperating entities. The conference, which willinclude a substantial delegation of lawyers from the U.S. and beyond, 22 Relocating Environmental Regulatory Powerswill address the key legal issues in doing business between Indian andU.S. companies. The conference will also provide a number of 26 Monsanto’s Brinjal Biopiracy: Disregardopportunities for networking and meetings, both before and after the for Biodiversity Laws in Indiaformal programming, including meetings in Delhi and Mumbaipreceding the conference. Please see the conference agenda included in 29 India’s Role in Multilateral Climatethis edition for more information. We hope you can join us for what Change Negotiationspromises to be an outstanding few days of conference, meetings, andinformal discussions. ________ ________ CASE NOTES In this issue of India Law News, we present articles on environmentallaw in India. The environmental challenges facing India are immense, 32 Compilation of Notable Recent U.S.- Indian Court Decisionsand the articles we present seek to shed light on these issues. We arevery pleased to have Armin Rosencranz, consulting professor ofInternational Relations at Stanford University, serve as guest editor forthis issue. He is one of the foremost authorities on environmental law inIndia, having authored Environmental Law and Policy in India: Cases,Materials, and Statutes, and taught advanced courses on environmentallaw at the National Law School in Bangalore. We hope you find thisfocus on environmental law to be informative and thought-provoking. We are very pleased to have Kavita Mohan as the new editor in chiefof India Law News. She has devoted substantial time and effort over thelast year as a co-editor to publish a high quality newsletter, and we areIndia Law News 4 Fall 2011
  5. 5. fortunate to have her lead us in our efforts to educate and inform ourmembership through this publication. Joining Kavita, Poorvi Chothaniand Sean Kulkarni are new co-editors Antonia Giuliana and Aseem India Law NewsChawla. Thank you for volunteering your valuable time. We are also EDITORIAL BOARD (2010-2011)grateful to Poorvi Chothani and her law firm for continuing to desktop Editor-in-Chiefpublish India Law News. Kavita Mohan Washington D.C. Finally, we wish to thank Rita Roy for her service as Committee vice- Co-Editorschair and, in particular, for her leadership in organizing webinars over Poorvi Chothanithe last two years. Anyone who has attended these webinars will LawQuest, Mumbai, Indiarecognize how committed she was to the Committee’s goal of providing Sean G. Kulkarnihigh quality programming for our members. As Erik so aptly put it, Rita Washington D.C.has been one of the rocks of the Committee, someone we could always Antonia Giulianacount on to get the job done, and expertly to boot. To that, we might add Kelley Drye, New York, NYthat she is, indeed, a rock star! Thank you Rita for your commitment and Aseem Chawlaservice, and we look forward to your continued involvement in the Amarchand & Mangaldas, New Delhi, IndiaCommittee. Desktop Publishing LawQuest, Mumbai, India As always, we encourage your ideas and participation in ouractivities in whatever way you can. We have enjoyed exceptionally India Law News is published quarterly by the India Committee of the American Barstrong interest from our members, and we want to thank you for that. Association’s Section of International Law, 740Keep giving us your thoughts and suggestions on how to make this 15th Street, N.W., Washington, DC 20005. No part of this publication may be reproduced, storedCommittees activities responsive to your interests and needs. in a retrieval system (except a copy may be stored for your limited personal use), or transmitted in any Sincerely yours, form or by any means (electronic, mechanical, photocopying, recording, or otherwise) without the Vandana Shroff prior written permission of the publisher. To Priti Suri request permission, contact the Co-Chairs of the India Committee. Sanjay Tailor India Law News endeavors to provide information concerning current, important developments pertaining to law in India, Committee news, and other information of professional interest to its readers. Articles reflect the views of the individuals who prepared them and do not necessarily represent the position of the American Bar Association, the Section of International Law, the India Committee, or the editors of India Law News. Unless stated otherwise, views and opinions are those of the authors and not of the organizations with which they are affiliated. This newsletter is intended to provide only general information and should not be relied upon in the absence of advice from competent local counsel. SUBMISSION DEADLINES Fall Issue September 1st Winter Issue December 15th Spring Issue February 15th Summer Issue June 1st Potential authors should review the Author Guidelines and send manuscripts via email to the Editorial Board. © 2011 American Bar Association All rights reserved Produced by India CommitteeIndia Law News 5 Fall 2011
  6. 6. ENVIRONMENTAL LAW IN INDIA — DOES IT LACK TEETH?By Vandana Shroff and Ashish Jejurkar he enforcement of environmental regulations that has propelled the judiciary into the role of India’s in India has been a major bone of contention environmental protector at large. for the legislature. The concern washighlighted in as many words by the Chief Justice of The present article deals with issues plaguing theIndia, Justice S.H. Kapadia. In a recent speech, Kapadia cause of environmental protection in India and the rolesuggested amending various environmental laws so as played by the executive, legislature, and the judiciary.to give them “more teeth” and also provide requisite It seeks to identify and comment upon the keymachinery to implement them properly [Outlook (Nov 9, challenges in enforcement of the current environmental2011)]. In light of the current political climate vis-a-vis law regime, while making a proposal for a morecorruption, at the forefront of public attention are many sustainable development mechanism.projects and factories that are alleged to having beenundertaken or proposed by large corporations in ENVIRONMENTAL LAW IN INDIA – LEGAL FRAMEWORK & JURISPRUDENCEcontravention of environmental law or being damagingto the environment. Many of these controversies have (i) Regulatory and Policy Structureinvolved civil society and native or tribal populationprotests, alleging that these projects have been given With over two hundred legislations in force,the approval by the Ministry of Environment and India has an exhaustive regulatory framework forForests (“MoEF”) and the state pollution control boards environmental protection. The Forty-Second(“PCBs”), without a proper assessment of its impact on Amendment to the Constitution of India in 1976the environment and the local populace and their introduced Articles 48A, which provides as alivelihood. Therefore, the issue at the heart of the directive principle of state policy that the State shalldebate regarding environmental protection has been endeavour to protect and improve the environmentstriking a balance between environmental protection and to safeguard the forests and wild life of theand economic development of India. country. Additionally, Article 51A (g) was also introduced, which imposes a fundamental duty India has seen a failure of the administrative upon all citizens of India to “protect and improve themachinery in adequately protecting the environment. natural environment including forests, lakes, rivers andThe Government of India had made an out of court wild life, and to have compassion for living creatures.”settlement on behalf of the victims of the Bhopal gas Additionally, Article 253 of the Constitution oftragedy, for an amount that was widely criticized as India requires the state to honor its internationalbeing inadequate. The decades subsequent to the obligations by enacting appropriate domesticinfamous Bhopal gas tragedy saw the Supreme Court of legislative measures. India is a signatory to aIndia as the sole champion of the cause of number of international conventions that mandateenvironmental protection, with public interest litigation protection of the environment including the famouscases (“PILs”) being entertained from any individual Rio Declaration of 1992 which was signed by Indiacitizen. Thus, it appears that it is the lack of an adequate and a large number of other nations at the Unitedlegislative, regulatory and administrative frameworkIndia Law News 6 Fall 2011
  7. 7. Nations Conference on Environment & provide for a regulatory framework for Development held at Rio de Janeiro in 1992. regulating the handling, treatment, transport and disposal of waste in a manner which is Apart from the Constitutional provisions that not detrimental to the environment. provide a general mandate on protection of environment, there are a plethora of other • The Public Liability Insurance Act, 1991 legislations dealing with specific environmental authorizes the central government to establish aspects. Important among these are: an Environmental Relief Fund to provide relief to victims of accidents occurring due to handling of any hazardous substances. • The Water (Prevention and Control of Pollution) Act, 1974 (“Water Act”) enacted to regulate the discharge of effluents into water beyond Further, a number of national policies such as certain permissible limits. the National Environmental Policy, 2006, National Policy on Pollution Abatement, 1992 and the • The Air (Prevention and Control of Pollution) National Conservation Strategy and Policy Act, 1981(“Air Act”) enacted to regulate and Statement on Environment and Development, 1992, prohibit air pollution. serve as directives for the central and state governments to follow. • The Forest (Conservation) Act, 1980 provides for procedure for use of forestland for non-forest The Environmental Impact Assessment purposes. Notification, (S. O. 1533) issued by the MoEF on September 14, 2006 (“EIA Notification”) under Rule • The Wildlife (Protection) Act, 1972 (“WPA”) 5 (3) (d) of the Environment (Protection) Rules, 1986 provides for protection to certain endangered (“EPR”) provides that prior environmental species plants and animals. The WPA also clearance is required for the construction of certain contains provisions for declaring a particular categories of projects, which are listed in the area in India as a wildlife sanctuary, national schedule to the said notification. park or closed area for preservation of the ecological environment of such an area. Paragraph 4 of the EIA Notification provides that all projects and activities are broadly • The Environment (Protection) Act, 1986 (“EPA”) categorized within two categories - Category A and is an overarching legislation providing for the Category B. All projects or activities included as central government to take measures for Category ‘A’, shall require prior environmental controlling pollution by setting standards for clearance from the Ministry of Environment and emissions and discharges, regulating Forests on the recommendations of an Expert hazardous wastes and protection of public Appraisal Committee, and projects falling within health. The EPA also provides for co- Category ‘B’ shall require prior environmental ordination between central and state PCBs clearance from the State/Union territory established under the Water Act and Air Act. Environment Impact Assessment Authority (“SEIAA”), whose decision will be based on the • Hazardous Wastes (Management and Handling) recommendations of a state or union territory level Rules, 1989 are rules framed under the EPA toIndia Law News 7 Fall 2011
  8. 8. Expert Appraisal Committee. The EIA Notification Article 51-A (g) of the Constitution of India. The bifurcates projects into Category A or Category B apex court has since passed a number of projects. The categorization is done on the basis of environmental decisions ordering actions for certain specified criteria or thresholds such as protecting the environment – such as cleaning up capacity for power plants or other manufacturing the Ganges river, banning tanneries and prohibiting facilities or built up area for real estate development smoking in public places. projects. The following are some of the landmark (ii) Judicial Contribution and Evolution of decisions of the Supreme Court in the space of Environmental Jurisprudence in India environmental protection: Indian Courts have played a pivotal role in • In M.C. Mehta v. Kamal Nath & Others enforcing the nation’s environmental standards by [2000 (6) SCC 213] (“Kamal Nath Case”), evolving various judicial principles from time to the public trust doctrine, which provided time. Even though Indian legislations on that certain natural resources like air, sea, environmental protection date back from the 1970s, water etc. constitute a gift of nature and as the watershed moment for environmental law in such cannot be a subject of private India occurred in 1984 after the tragic leak of ownership. In this case, a company having Methyl Isocyanate gas at the Union Carbide links to Kamal Nath, the then Minister of Corporation (“UCC”) pesticide plant at Bhopal. The Environment and Forests, was given absence of an effective legal framework in India approval to construct a resort on forest through which to impose adequate liability and a land and on the banks of the River Beas. significant monetary penalty on UCC resulted in a The Court did not permit construction to global outrage. The response and handling of the divert the course of River Beas which had disaster by the Indian government has been heavily engulfed the resort. As the area was criticized, as the government settled the issue out of ecologically fragile and full of scenic the courts with UCC for a paltry sum. The disaster beauty, it should not have been permitted also signified the lack of an adequate safety to be converted into private ownership for framework for environmental and human damage commercial gains. from industrial pollution. • In Vellore Citizen’s Welfare Forum v. Union The last three decades have seen the Supreme of India [AIR 1996 SC 2715], the Court and various High Courts stepping in to “precautionary principle” and “polluter provide for enforcement of environmental laws pays principle” were held to be a part of through PILs by expanding the interpretation ofthe the environmental law of the country to “right to life” granted under Article 21 of the ban the operation of tanneries until Constitution of India, the right to a healthy necessary effluent treatment devices have environment. The court drew its inspiration from a been set up. The apex court also directed directive principle of state policy enshrined in all the High Courts to establish “Green Article 48-A of the Indian Constitution, which Benches” to deal with environmental imposes upon the state the duty to protect the cases. environment as well as the fundamental duty underIndia Law News 8 Fall 2011
  9. 9. • In the Taj Trapezium Case (M.C. Mehta v. authority and function as autonomous entities, with Union of India [AIR 1997 SC 734]), the no central authority to regulate their functioning. principle of “Sustainable Development” Therefore, the dual chain of command, the lack of a was applied and it was held that proper co-ordination mechanism between central industries causing harm to Taj Mahal PCBs and state PCBs and with the MoEF as well as through emissions should either change to human, technological and financial capacity natural gas or relocate outside the Taj constraints, are the major reasons for their lack of Trapezium. efficient administration of the environmental law regime in India [OECD (2006)]. • In Rural Litigation & Entitlement Kendra v. State of UP [AIR 1985 SC 652], the apex The Water Act contains a “deemed consent” court sidelined the economic interests of provision which provides that if a state PCB doesn’t the State and ordered the closing of a pass an order as to approve or reject an application limestone quarry for preservation of the made by an industry within a period of four months ecological balance. from the date of making the application, then consent shall be deemed to have been granted. Due • In the Oleum Gas Leak Case (M.C. Mehta v. to the absence of an effective mechanism for Union of India [AIR 1987 SC 1086]), the granting consents, state PCBs have inculcated a principle of “absolute liability” was practice of turning a blind eye to such applications. adopted to provide compensation to As such, many industries have been allowed to victims of accident caused by an industry operate on the basis of this “deemed consent” dealing with hazardous substances. privilege. Additionally, PCBs seem to suffer from a variety of other challenges, including dearth of KEY CHALLENGES IN ENFORCEMENT technical capacity, manpower and funding support, which pose as challenges to the effective The Indian Supreme Court through Justice B.P. enforcement of environmental law. Jeevan Reddy in the Indian Council of Enviro-Legal Action vs. Union of India [AIR 1996 SC 1446], rightly (ii) Political Conflicts, Interference and stated that if the mere enactment of laws could Inconsistency ensure a clean environment, India would be pollution-free. The problem in enforcement While the problem of corruption is however, is more deep seated and requires taking undoubtedly systemic in the Indian political and actions at multiple levels, some of which are as administrative setup, it has been found to be follows: particularly rampant in environmental cases either by the Supreme Court or various inquiry (i) Problems with Implementing Agencies committees appointed for the purpose of examining (PCBs) such cases. Presently, most industries and projects A recent example is the proposed iron ore require the prior consent of the requisite state PCB extraction project of POSCO, a South Korean to establish or operate a facility. The PCBs (both company, in the state of Odisha in India (formerly central and states) are vested with absolute known as Orissa). The state government had signedIndia Law News 9 Fall 2011
  10. 10. a memorandum of understanding in 2005 with democratically elected state government cannot always POSCO permitting the company to extract up to 600 be questioned by the Centre” [Open Magazine (Jun. 27, million tonnes of iron ore over the next 30 years in 2011)]. Odisha. However, the local residents of the villages at and surrounding the proposed project site (iii) Economic Growth v. Environment claimed that the construction would result in a loss Protection of livelihood of the local populace. This project has now being cleared by the MoEF. However, civil India being a developing country, economic society has raised significant questions on the development is always an important consideration. government’s commitment to protect the However, Mr. Jairam Ramesh’s tenure as the environment and conserve the country’s natural Environment Minister witnessed scrapping or resources. According to them, the POSCO project delayed clearance of hundreds of development will result in significant environmental pollution projects, which has reignited the debate on striking and such approvals appear to be a prime example the balance between economic growth and of administrative and enforcement agencies environmental protection. For instance, in last buckling to political pressures from the August the MoEF rejected the proposal for mining Government. The central and state governments are in Orissa by Vedanta on grounds that the project inclined to grant clearances and approvals for would contravene various environmental laws and projects which involve large investments by large raised concerns on the livelihood related aspects of Indian corporate houses and especially multi- Dongria Kondh - a local tribe. This was followed by national companies due to the financial benefits at stalling construction of the ambitious Lavasa the cost of environment. There also appears to be Housing Project at a hill station near Mumbai, on exercise of large amount of discretion without any similar reasons of not securing the requisite parameters involved. For example, the Odisha environmental clearances. government had earlier not permitted a separate proposal by the Tatas, an Indian corporate house, Therefore it appears that there is a tradeoff for an iron ore extraction of a much lower tonnage between environment and growth. Environmental of iron ore. The Meena Gupta Inquiry Committee concerns should not be sidelined for economic which was appointed to review the POSCO project growth and similarly the effective implementation reported instances of interference by the Ministry of of environmental protection should not be hindered Finance into the functioning of MoEF in granting in the name of economic development. A balance environmental clearances for Posco’s deal [Meena can be struck by following a number of principles Gupta Committee Report (2010)]. developed in international environmental jurisprudence, such as the ‘sustainable The continued conflict between central and development’, ‘precautionary principle’ and state governments on the power to grant clearances ‘polluter pays principle.’ to development projects further substantiates the problem, especially in the case of large projects Taken as a whole, there are objective which have to be cleared by the central level benefits to India from the FMS process and its authorities. Mr. Jairam Ramesh’s, the former employment in combination with DCS. While FMS Minister of Environment and Forests correctly is not ideally aligned with the DPP, fundamental stated that “beyond a point the bona fides of a objectives are substantially similar. It behoovesIndia Law News 10 Fall 2011
  11. 11. both the USG and the GOI, as well as prospective THE SILVER LINING commercial partners from both countries, to anticipate and work through alignment issues. The There have been some healthy developments USG has mechanisms to facilitate U.S. participation and proposals which may assist in enhancing the in international competition. These include the enforcement capabilities in relation to coordination of actions necessary to comply with environmental law. U.S. law as well as working with the foreign government. Both countries would benefit from an Recently, the tough stance which has been taken initiative to identify recurring issues in the by the Ministry of Environment and Forests of the application of FMS to the full scope of prospective Government, in strictly scrutinizing projects prior to GOI requirements, so that recommended practices granting of clearances, is a step in the right and representative solutions may be developed in direction. Other noteworthy efforts include the advance of future procurements. coming into force of the National Green Tribunal Act, 2010 and a recent proposal by the Prime (iv) Lack of enforcement of the international Minister for an independent environmental environmental law principle of “Polluter regulator. Pays” (i) The Green Tribunal Act As mentioned earlier, the Supreme Court has held the “polluter pays” principle to be part of The 186th Law Commission of India had the law of the land. Based on the absolute liability recommended the establishment of specialized principle, the “polluter pays” principle imposes environmental tribunals with exclusive responsibility on a party engaged in any hazardous jurisdiction with regard to environmental cases. or inherently dangerous activity to make good the In terms of the said recommendation, such loss he caused to another through such activity, tribunals were to be vested with same powers irrespective of whether he exercised reasonable care as a civil court exercising original jurisdiction or not. with appeals lying with a national environmental tribunal. On October 18, 2010, For instance in the Kamal Nath Case, the the National Green Tribunal Act, 2010 (“Green Supreme Court applied the principle and imposed Tribunal Act”) was enacted. This Green punitive damages on one of the parties to serve as a Tribunal Act places India in a select group of deterrent for other establishments causing countries having specialized tribunals for pollution. However, there are only a few other cases environmental protection (“Green Tribunal”). in which damages were imposed. Hence, for This Green Tribunal Act replaced the National effective implementation the government should Environmental Tribunal Act of 1995 and enact guidelines and lay down criteria for National Environmental Appellate Authority determining compensation and damages payable Act, 1997. The enactment of the Green Tribunal by industries causing environmental damage. Act is a beneficial step for environmental governance in India, for the following reasons:India Law News 11 Fall 2011
  12. 12. (a) Green Tribunals help ease the burden of system of obtaining clearances would greatly the courts from the existing docket incentivize industrialization at the same time as explosion of environmental cases; and encouraging industries for approaching the (b) The Green Tribunal Act seeks to do authorities for clearances without fearing away with the lacunae in the existing bureaucratic red tape. adjudicatory mechanism contained under various environmental (iii) Proposal for an Independent Environment legislations. [Gill (2010)]. Regulator The Green Tribunal has a broad-based The current Prime Minister of the Indian jurisdiction with power to adjudicate upon not only central government, Dr. Manmohan Singh, has violations of environmental laws, but also issue recently proposed the establishment of an clarifications involving substantial questions of law independent environment regulator called the and review compliances and clearances under National Environmental Appraisal and Monitoring different environmental statutes. India has Committee (“Environmental Committee”), tasked successfully implemented specialized tribunals for a with granting clearances to industrial projects. number of classes of disputes for speedier dispute According to the Prime Minister, the Environmental resolution – such as the Securities Appellate Committee would effect a complete change in the Tribunal, Central & State Administrative Tribunals, process for granting environmental clearances by Intellectual Property Appellate Tribunals, etc. introducing better evolved and objective standards Therefore, this approach appears to be a good way of scrutiny. The Environmental Committee is to be to ease the burden and backlog of disputes on the established with the vision of reducing litigation in various High Courts and the Supreme Court. On development projects due to environmental issues, the other hand, orders issued by these tribunals are without going back to the “license permit still appealed by aggrieved parties before the High raj”.[Business Standard (Jul. 25, 2011); The Hindu (Jul. Courts and the Supreme Court invoking their writ 24 2011)]. jurisdiction, which defeats the purpose of creation of specialized tribunals. The establishment of a unified central regulator has the potential to be an excellent (ii) Single Window Clearance approach to solve the multiplicity of problems plaguing the enforcement of environmental law One significant development in relation to today. However, it remains to be seen what the the administration of environmental approvals for bifurcation of the roles of the MoEF, PCBs and the industrial projects establishment has been the Environmental Committee shall be. Certain enactment of single window clearance legislations independent regulators such as the Securities and by many states beginning with Andhra Pradesh, Exchange Board of India have been considered to be wherein projects within a particular project cost fairly efficient as a regulator. In other cases such as threshold can apply for approvals through a single in the telecom space, in relation to the establishment window clearance mechanism. [Rangarajan (2009)]. of the Telecom Regulatory Authority India, the A leading criticism of India has been its introduction of another independent regulatory administrative setup for obtaining any approvals, body has only increased the confusion resulting licenses or registrations. Therefore, a single window from conflicts in jurisdiction of the regulators.India Law News 12 Fall 2011
  13. 13. Hopefully the government will take their past 5. Gill (2010): Gitanjali Nain Gill, A Green Tribunal experiences in the failure of multiple regulatory for India, 22(3) JOURNAL OF bodies and streamline an effective administrative ENVIRONMENTAL LAW 461–474 (2010). machinery for the enforcement of environmental laws. 6. Rangarajan (2009): Rajesh Rangarajan, A Review of Implementation Gaps in the Enforcement of NOTES Environmental Regulations in India (Institution of Financial Management and Research, Centre for 1. Outlook (Nov 9, 2011): Chief Justice of India Seeks Development Finance, Environmental Policy: Teeth for Green Laws, OUTLOOK INDIA, Citizens, Institutions and Implementation November 9, 2011. Working Paper, July 2009). 2. OECD (2006): OECD, REPORT ON 7. Business Standard (Jul. 25, 2011): Independent ENVIRONMENTAL COMPLIANCE AND environment regulator soon, says PM, BUSINESS ENFORCEMENT IN INDIA 14, 15 (2006); STANDARD, Jul. 25, 2011. Rajesh Rangarajan, A Review of Implementation Gaps in the Enforcement of Environmental 8. The Hindu (Jul. 24 2011): J. Balaji, Independent Regulations in India (Institution of Financial environmental clearances soon, THE HINDU, Jul. Management and Research, Centre for 24 2011. Development Finance, Environmental Policy: Citizens, Institutions and Implementation Vandana Shroff is a Senior Partner and Ashish Working Paper, July 2009). Jejurkar is a Partner at Amarchand & Mangaldas & Suresh A. Shroff & Co. They can be 3. Meena Gupta Committee Report (2010): Meena contacted at vandana.shroff@amarchand.com Gupta Committee Report; Report of the and ashish.jejurkar@amarchand.com. Committee Constituted to Investigate into the proposal submitted by POSCO India Pvt. Limited for establishment of an Integrated Steel Plant and Captive Port in Jagatsinghpur District, Orissa, Ministry of Environment & Forests, October 18, 2010. 4. Open Magazine (Jun. 27, 2011): Jay Mazoomdaar, The Great Iron Ore Heist, OPEN MAGAZINE, Jun. 27, 2011.India Law News 13 Fall 2011
  14. 14. THE IMPLEMENTATION OF ENVIRONMENTAL JUDGMENTS By Geetanjoy Sahu he role of the Indian Supreme Court in resolving Although the Indian Supreme Court’s directions environmental disputes has contributed have been implemented in a number of cases, there immensely to the evolution of environmental remain a fair number of cases where the Court’s jurisprudence principles in India. These directions have not been implemented or have beenprinciples include: recognizing the right to a healthy only partially implemented. In M.C. Mehta and Others v.environment as part of the fundamental right to life; Union of India, AIR 1987 SC 965 (“Oleum Gas Leakdirecting polluters to follow environmental norms and case”), the Court created the doctrine of absoluteregulations; ordering implementing agencies to liability, while clarifying the principle of strict liabilitydischarge their constitutional duties to protect and set forth in the landmark English case Rylands v.improve the environment; determining the quantum of Fletcher. The Indian Supreme Court has also developedcompensation for affected persons; taking suo motu the principle of claiming compensation under its writactions against polluters; entertaining petitions on jurisdiction by creating a public remedy. However,behalf of affected parties; and expanding the sphere of ultimately, victims of gas leaks have been left to thelitigation. ordinary relief of filing suits for damages. In Indian Council for Enviro-Legal Action v. Union of India, AIR The Indian Supreme Court also has introduced 1996 (3) SCC 212 (“Bichri Village Industrial Pollutionenvironmental principles for the environmental safety, case”), concerning the contamination of ground water,protection, and the well-being of the people. These the Court, after analyzing all the provisions of law,environmental principles include the “polluter pays” rightly observed that damages can be recovered underprinciple, where the polluting party pays for the the provisions of the Environment Protection Act.damage done to the natural environment; the However, the assessment of compensation, payment,precautionary principle, which aims to provide and the appropriate remedial measures remainguidance for protecting public health and the unsettled. See Sanjay Parikh, Development ofenvironment in the face of uncertain risks, stating that Environmental Law: A Critical Appraisal, a paperthe absence of full scientific certainty shall not be used presented at the National Consultation on Critiquingas a reason to postpone measures where there is a risk Judicial Trends on Environmental Law, organized byof serious or irreversible harm to public health or the the Human Rights Law Network in New Delhi,environment; the absolute liability doctrine, in which February 23-24, 2008.legal responsibility for an injury can be imposed on thepolluter without proof of carelessness or fault; and the The Court’s directions set forth in M. C. Mehta v.public trust doctrine, a principle that certain resources Union of India, AIR 1988 SC 1115 (“the Ganga Riverare preserved for public use, and that the government Pollution case”) also were not implemented properly.is required to maintain it for the publics reasonable The tanneries continue to operate despite the Court’suse. In this paper, I have discussed how the judicial direction that strict action be taken against theactivism of the Indian Supreme Court has been polluting industrial units in Kanpur. It has beenextended to implement its own directions, and the observed by many scholars that both the sewagemajor implications of this development for treatment plants and the common effluent treatmentenvironmental jurisprudence in India. plant have failed to treat waste adequately. See Praveen 14 Fall 2011
  15. 15. Singh, Bridging the Ganga Action Plan: Monitoring failure importance of judgments. See M. K Ramesh,at Kanpur, Economic and Political Weekly, Vol. XLI, No. Environmental Justice: Courts and Beyond,7 (2006), pp. 590-592. In S. Jagannath v. Union of India, Indian Journal of Environmental law, Vol. 3, No. 1,which involves the destruction of coastal ecology (June 2002), pp. 20-37. This has provoked the Court inthrough extensive shrimp farming, the Court directed recent times, to come up with an innovative method tothe closure of shrimp farms and issued orders for the see that its orders are implemented: continuingpayment of compensation pursuant to the “polluter mandamus. See Vineet Narrain v. Union of India andpays” principle in addition to directing that the cost of Others, Supreme Court of India, Judgment of 18remedial measures be borne by the industries December 1997, 1997 (7) SCALE 656. According to thethemselves. See S. Jagannath v. Union of India and Court, its continuing mandamus authority arises fromOthers, AIR 1997 (2) SCC 87. However, post-judgment, the Constitutional framework of judicial review. Thethe Court curiously stayed its own directions under technique enables the Court to closely monitor thereview; and thereafter, the Parliament enacted investigations by the government agencies.legislation that effectively overruled the Court’sdirectives in the case. As a result, no compensation has The application of the continuing mandamusbeen paid to the farmers and the people who lost their procedure suggests that instead of closing the case oncelivelihood and the damage to the environment has not the Court enters a judgment, it may issue a series ofbeen remedied. In yet another case, the Court imposed directions to the relevant administrative body ora fine on Span Motel for harming the ecology of the appoint a monitoring committee to implement theriver Beas. See M.C. Mehta v. Union of India, AIR 1997 (1) Court’s orders, both of whom would periodicallySCC 388. The Court ordered Span Motel to make report to the Court about the progress that is beingrestitution of the environment and ecology of the area. made in the implementation process. For example, inSubsequently, the Court clarified that no fine could be several environmental cases, monitoring committeesimposed under its writ jurisdiction and that the matter have been constituted to implement the Court’s orders,was required to be adjudicated under the provisions of including the Loss of Ecology Authority in the Vellorethe Environment Protection Act of 1986. An attempt to Industrial Pollution Case, the Central Empoweredrecover damages for environmental harm caused by Committee in the T N Godavarman Case, the Bhurelaldumping of waste oil by various importers also failed. Committee in the Delhi Vehicular Pollution Case, and the Dahanu Taluka Environmental Protection In a democratic set up with separation of powers, Authority in the Dahanu Power Plant Case For moreonce the judgment is passed, it is left to the details, one can see Sahu, G (2008), Implications ofadministration to implement the judgment. Although Indian Supreme Court’s Innovations for Environmentalthe Court in its judgment issues directions to the Jurisprudence, Journal of Law, Environment andagencies of the state with respect to the implementation Development (LEAD), International Environmentalof its decisions, it will not oversee their actual Legal Research Centre, London, Number 4/1).implementation. Nor will the Court examine the extentof its implementation and the nature of its impact. A representative example in which the CourtEnforcement agencies like the State Pollution Control invoked its continuing mandamus authority is T.N.Board, in a number of instances that involve serious Godavarman v. Union of India, which involved forestenvironmental problems and public interest, are found conservation. T.N. Godavarman v. Union of India, AIRto have taken advantage either by postponing or not 1997 SC 1228 The action was commenced in 1996 forimplementing decisions, notwithstanding the the purpose of seeking an order from the Indian 15 Fall 2011
  16. 16. Supreme Court to stop the felling of trees and to justified its actions either under a statutory provisionregulate the indiscriminate cutting of timber in the (the power to appoint commissioners in matters of civilNilgiris Forest. The case is yet to be finally decided. The nature is found in Order XXVI Civil Procedure CodeCourt in this case has entertained at least 2000 and Order XLVI Supreme Court Rules, 1966) or as aninterlocutory applications and keeps hearing on every aspect of their inherent powers (Inherent power of theFriday afternoon. Supreme Court under Article 32 and of the High Courts under Article 226 of the Constitution). Over the years, the Court has passed a series oforders that concern the protection of forests, wildlife, It is undeniable that the devices employed by thebiodiversity, and national parks, and the eviction of Court have helped get detailed facts, understandencroachers, including tribal communities. All of these complexities of social, economic and scientific issuesorders are in different stages of implementation. A revolving around environmental problems so as tosignificant order issued by the Court is the December arrive at decisions. However, accordingly the12, 1996 order, which clarified certain provisions of the environmental governance process has become moreForest (Conservation) Act, 1980 and also extended the complex through such judicial interventions andscope of the Act. The Court held that the word “forest” innovations. For a more detailed analysis of the case,shall be understood according to the dictionary see Armin Rosencranz, Edward Boenig and Brindameaning and that all ongoing activity, such as mining, Dutta (2007), The Godavarman Case: The Indian Supremetimber cutting, saw mills etc., within any forest in any Court’s Breach of Constitutional Boundaries in Managingstate throughout the country, without the prior India’s Forests (Washington DC: Environmental Lawapproval of the Central Government, must cease Institute).forthwith. Another significant order is the Court’s May9, 2002 order, which constituted the Central At the theoretical level, advocates of the theory ofEmpowered Committee, a national-level authority separation of powers among the legislative, executive,charged with the responsibility to monitor the and judiciary branches argue that the Court should notimplementation of the Court’s orders, remove have any role in the implementation of its ownencroachments, implement working plans, and handle decisions and that its functional scope is confined to theother conservation issues in the T N Godavarman Case. adjudication of laws and policies, and that theThe constitution of the Central Empowered Committee implementation of the Court’s judgments rests solelywas an effort by the Court to assist, partner, and guide with the state’s own implementing agencies. Goingthe administration in protecting the forests across the further, they argue that the Court’s intervention in thecountry, thereby presenting a model for the rest of the implementation of its judgments would not onlycounty to emulate. However, in the process of violate the principle of separation of powers but wouldimplementation and in its enthusiasm to present such a also be contrary to the spirit of democracy. Themodel, the Court became mired in the complexities of a question then is how to ensure the implementation ofgovernance issues mainly managed by the the Court’s orders in environmental litigation cases.bureaucracy, local institutions and the traditional form The orders issued by the Court are obviously not self-of forest management. These efforts on the part of the executing, as they must be enforced by state agencies.Court are, without doubt, unprecedented, even though Consequently, if state agencies are not enthusiasticthey appear to be an invasion into the administrative about enforcing the Court orders and do not activelyterrain. The Court, however, has denied any such cooperate in the task, the purpose of environmentalusurpation. In its pronouncements, the Court has justice would remain unfulfilled. Such failure of state 16 Fall 2011
  17. 17. agencies to ensure enforcement of the Court’s orders essential for the success of PILs that a methodology bewould not only deny effective justice to the affected devised to secure the enforcement of the Court’s orderspeople on whose behalf the litigation is brought, but issued in environmental litigation.also would have a demoralizing effect on the peoplewho might lose faith in the capacity of the Geetanjoy Sahu is an Assistant Professor, School ofenvironmental litigation system to deliver justice. Habitat Studies, Tata Institute of Social Sciences (TISS), Mumbai, India. He can be contacted at Referring to the non-implementation of the Indian geetanjoy@tiss.edu.Supreme Court’s orders, Justice S.P. Bharucha stated: This Court must refrain from passing orders that cannot be enforced, whatever the fundamental right may be and however good the cause. It serves no purpose to issue some high profile mandamus or declaration that can remain only on paper. It is counter- productive to have people say, the Supreme Court has not been able to do anything or worse. It is of cardinal importance to the confidence that people have in the Court that its orders are implicitly and promptly obeyed and it is, therefore, of cardinal importance that orders that are incapable of obedience and enforcement are not made. See Justice S.P Bharucha’s Inaugural lecture as partof the Supreme Court Bar Association’s Golden JubileeLecture Series on Supreme Court on Public InterestLitigation (2001). The success or failure ofenvironmental litigation would necessarily depend onthe extent to which it is able to provide actual relief tothe persons affected by pollution and correct thedamage done to the environment at the grassrootslevel. If the Court’s orders in environmental litigationwere to remain merely as paper documents, then theinnovative method of allowing Public InterestLitigations (“PILs”) to resolve environmental conflictsby the Indian Supreme Court would lose all of itsmeaning and purpose. It is, therefore, absolutely 17 Fall 2011
  18. 18. LAFARGE DECISION - LIGHT AT THE END OF THE TUNNEL?By Ravi Singhania and Sunayna Jaimini I. Environment v. Development Recently, most infrastructure and mining related projects in India were plagued with Every once in a while, a developing country controversies regarding environmental clearances. has to decide between two of its necessary and In most cases, due to lack of coordination between opposing obligations – economic development various governmental authorities governing the versus protection of the environment. This debate projects, the developers were given the nod by one is further intensified in a country like India where authority only to be stalled by another, sometimes the pressure to maintain the precarious balance even after the developers had commenced with the between environment and development gets projects. Not only were the environmental intensified due to its ever-increasing population clearances unnecessarily delayed, clearances – once coupled with the problem of its fast-depleting granted – were also retracted by the authority after natural resources. Consequently, this debate is oft the lapse of a considerable time period. repeated in the courts of law, wherein the judiciary has to umpire between the question of One such recent controversy was put to rest development and the question of protecting the by the Hon’ble Supreme Court of India in the environment. In order to honor both commitments, landmark case of Lafarge Umiam Mining Private the judiciary has finely balanced the two on the Limited v. Union of India (2011 (7) SCALE 242). In touchstone of “sustainable development.” LaFarge, the Hon’ble Court not only settled the dispute about the legality of the environmental “Sustainable development” is defined as clearance obtained by the company, but also in a development that meets the needs of the present praiseworthy step of judicial activism, provided without compromising the ability of future detailed guidelines for granting environmental generations to meet their own needs. This concept clearances for future projects. has been adopted by most countries as a principle to harmonize the needs of development and In the present matter, the Ministry of environment. Environment and Forest (“MoEF”) alleged that Lafarge Umium Mining Private Ltd., an Indian To ensure “sustainable development” in company that had leased mining rights in India, Indian environmental policy dictates Meghalaya, misrepresented “forest land” to be obtaining prior environmental clearance for certain infertile barren land to obtain environmental projects from the Ministry of Environment and clearances. This gave rise to two issues before the Forests under various environmental legislations Court—firstly, a determination of the nature of like the Environment Protection Act, 1986 and the land in question, and secondly, an examination of Forest Conservation Act, 1980. The aim of obtaining whether the company had misrepresented the such clearances is to ensure that sensitive flora and nature of the land in order to dishonestly obtain fauna are not sacrificed on the altars of clearances from the Ministry. development for the masses.India Law News 18 Fall 2011
  19. 19. This step was taken after the Chief Conservator of Forests (“CCF”) for Meghalaya informed the MoEFII. Lafarge v. The Ministry- Houston, we that Lafarge had misrepresented that the mining have a problem! area was not a “forest land” and had diverted forest land for its mining activity without first obtaining Lafarge Surma Cement Ltd (“LSCL”) is a the necessary forest clearance under section 2 of theBangladeshi company that has a cross border Forest Conservation Act, 1980. The companycement manufacturing project in Chhatak, vehemently denied such allegations and stated thatBangladesh. LSCL has a 100 hectare captive it had proceeded with the developmental work onlimestone mine located in Khasi, Meghalaya. The the basis of the certificate given by DFO, pursuantmine is leased out to its wholly owned subsidiary to which the DFO had certified that the project areain India namely Lafarge Umiam Mining Private was not “forest land” and did not fall in any of theLimited and the limestone quarried in the mine is notified, reserved, or protected forests. Therefore,transported via a 7km long conveyor belt to the according to the company, the requirement ofcement factory in Bangladesh. The limestone obtaining a forest clearance did not arise.quarried from the mine in Meghalaya is the onlysource of limestone for the cement factory. Further, Shella Action Committee (“SAC”), which was spearheading the movement on behalf In 1997, before commencing the project, of tribals of the region, alleged that Lafarge wasLSCL through its subsidiary in India, namely Lum flagrantly violating Schedule VI of the IndianMawshun Minerals Private Limited (“LMMPL”), Constitution, which provides for protection ofbegan the process of obtaining the necessary tribal land in the North Eastern region of Indiaenvironmental clearances from the MoEF. As a part against acquisition by non-tribals. SAC argued thatof the application, LMMPL made representations since Lafarge had misrepresented the nature of thethat the limestone mines did not involve the project land, no forest clearance should be granteddiversion of “forest land.” The LMMPL’s to the company.representations were supported by two sources—firstly, the letters from the Khasi Hills Autonomous Ultimately, the court allowed the companyDistrict Council (“KHADC”), the local authority to resume its mining operations in the region afterwith jurisdiction over the mines, and secondly, a taking into consideration that the MoEF hadcertificate from the Divisional Forest Officer granted the forest clearance in April 2010 and that(“DFO”) of the Khasi Hills Division stating that the the Company had complied with the preconditionsmining site was not in a forest area. After several to the environmental clearance. In itsrounds of queries from the MoEF and consequent determination, the Court placed great emphasis onresponses from LMMPL, the MoEF finally gave the rights of locals to decide on the value ofenvironmental clearance for the mines in 2001, and conservation of the environment. In addition, thesubsequently LMMPL commenced its mining Court observed that the KHADC’s letters as well asoperations. the Court’s subsequent findings revealed that the Lafarge project resulted in significant gains for the In 2007, six years after the MoEF had local community.already granted the appropriate clearances, MoEFasked Lafarge to stop all mining activity in the area. 19 Fall 2011
  20. 20. III. The Lafarge judgment and its impact the specified procedure for obtaining environmental clearances and there is evidence on The Lafarge judgment is hailed for record that the entity granting the clearance hadproviding clarity on two important issues—firstly, done so after due consideration, such clearancesfor its clarification about the extent of judicial would not be reversed to the prejudice of thereview in situations where environmental project developer. This provides some muchclearances have been granted but are later needed stability to the environmental clearancechallenged with respect to the validity of the said process and both project developers andprocess, and secondly, for laying down environmental activists would definitely benefitcomprehensive guidelines for future projects that from this consistent approach.involve both forest and environmental clearances. The Court also opined that the protection of ii. Directive for future projectsthe environment is an ongoing process andtherefore “across-the-board” principles cannot be In Part II of the judgment, the Hon’bleapplied to all cases. Courts would have to examine Court laid down specific guidelines to be followedthe facts of each case on whether the project should in future projects. The following are a fewbe allowed or not. The “margin of appreciation” important directives of the Court:doctrine would apply in matters where questionsare raised regarding governmental errors in National Forest Policy, 1988: The Court upheldgranting environmental clearance. that the far-reaching principles of the National Forest Policy, 1988 (which until now has beeni. Judicial Review relegated to the back burners as a paper tiger policy) must govern the grant of forest clearances On the question of the extent of judicial under the Forest Conservation Act, 1980. Thereview, the Court held that the constitutional principal aim of National Forest Policy, 1988 is to“doctrine of proportionality” should apply to ensure environmental stability and maintenance ofenvironmental clearances. Therefore, decisions ecological balance, it further mandates that therelating to utilization should be judged on well- derivation of direct economic benefit must beestablished principles of natural justice, such as subordinate to this principal aim.The Court notedwhether all relevant factors were taken into account that, to date, there has been no mechanismat the time of coming to the decision, whether the available to implement it. However, the Court hasdecision was influenced by extraneous now made it mandatory for decision-makingcircumstances, and whether the decision was in bodies to consider the provisions of the Nationalaccordance with the legislative policy underlying Forest Policy, 1988 before granting projectthe laws that governs the field. If these approvals.circumstances were satisfied, the decision of agovernment authority, would not be questioned by Establishment of independent Regulator: Underthe Court. Section 3(3) of the Environment (Protection) Act, 1986, the Central Government should appoint a The importance of this section of the National Regulator for appraising projects,judgment is that the Court lays down a clear enforcing environmental conditions for approvals,principle that if a project developer complies with and to impose penalties on polluters. In a press 20 Fall 2011
  21. 21. release, the MoEF stated that it has already initiated CONCLUSIONthe process of appointment of the independentNational Environmental Appraisal and Monitoring In conclusion, the Court has taken bold steps toAuthority and that it has circulated proposals for remove the various bottlenecks that plagueinter-ministerial consultations. It is expected that development projects, while ensuring that thethe regulator and the newly established National environmental agencies follow establishedGreen Tribunal will be able to stabilize and directives and principles of protection ofexpedite the process of obtaining clearances and environment in granting environmental clearances.that there shall be fewer conflicts relating to MoEF has hailed the following specific guidelinesenvironmental clearances in the future. of the Court, namely, the emphasis of the National Forest Policy, 1988, in determining whether to grantPanel of Accredited Institutions: Further, the environmental clearances and the establishment ofCourt observed and opined that the government an independent regulator, amongst other things.and the courts are often confronted by In a welcome step since the passing of thecontradicting reports of various authorities judgment, the MoEF recently further streamlinedsubmitted by the project developer. This often environmental clearance norms for projectscreates confusion and delays in the clearance requiring forest land. By an order dated Septembergranting process. To avoid such confusion, the 9, 2011, projects will now be eligible to beCourt’s view is that a regulatory mechanism should considered for site clearance even as theirbe put in place, in the mean time, the MoEF should application for forest diversion is underprepare a Panel of Accredited Institutions from consideration. However, as a safeguard againstwhich alone the project proponent should obtain misuse, the order requires the project developer tothe environmental impact assessment report on the submit certain supporting documents from theterms of reference formulated by the MoEF. forest authorities at the state or central level stating that an application for forest clearance in place.Prior Site Inspection by MoEF: To avoid future Once the environmental appraisal committeecontroversies regarding misrepresentation of the makes a recommendation and the ministry takes astatus of project land by the project developer, the final decision on the environmental clearance forCourt held that if the project developer makes a the project, the project developers would beclaim that the land in question is not forest land, informed of the decision. This reverses the earlierand if there is any doubt in the mind of the MoEF decision of MoEF to tighten guidelines in an effortregarding the veracity of such claim, the site shall to reduce the diversion of forests by making it a lastbe inspected by the State Forest Department along resort option.with the Regional Office of MoEF to ascertain thestatus of the land. Upon inspection, if it is found The authors are affiliated with Singhania andthat the “forest land” is involved, then the project Partners LLP, a full service national law firmdeveloper will be required to apply for prior forest with offices in Delhi, Mumbai, Bangalore andclearance. Further, there are several directions Hyderabad.Ravi Singhania is a Senior Partnergiven to the MoEF to expand its internal and Sunayna Jaimini is an Associate at the firminfrastructure to better facilitate inspection, and they specialize in infrastructure andmonitoring, and appraisal of proposals. general corporate law. They can be reached at rs@singhania.in and s.jaimini@singhania.in. 21 Fall 2011
  22. 22. RELOCATING ENVIRONMENTAL REGULATORY POWERSBy Kanchi Kohli and Manju Menon o one who has been following the Protection Agency will provide technical support for environmental regulatory landscape in India Indian efforts to establish an National Environmental for the last two decades could have missed Protection Authority focused on creating a more the governments proposal to resolve the effective system of environmental governance,contested design and implementation of environment regulation and enforcement.”regulation in the country. This is especially related toimpact assessment and pollution related norms and The MoEF subsequently revised its discussionprocedures. Twenty five years after it was set up, the paper and presented three possible models for theMinistry of Environment and Forests (“MoEF”) has proposed NEPA prior to a public consultation held inadmitted that it does not have the capacity to grant New Delhi on 25th May 2010. These three modelsenvironmental approvals and monitor them thereafter. represented roles for the NEPA with varyingTherefore, what is needed is an independent expert combination of roles for grant of environment clearanceauthority to which a part of the MoEF’s responsibility (under the EIA Notification, 2006), pollution mitigationcan be handed over, while MoEF continues to retain the and the overall enforcement and monitoring of thelaw-making function. norms laid alongside these approvals. The third model was one where the NEPA would only have the function On the 15th of August 2011, as part of his of monitoring and compliance of environmentIndependence Day speech, the Prime Minister of India clearance conditions (explained in a later section) andreiterated the government’s intention to constitute an no powers to grant environmental clearances. At theenvironmental assessment and monitoring authority to public hearing with limited participation held in Newstreamline the process of environmental clearances in Delhi, there were many questions raised about thethe country. This was important, as it was the same need, format, and mandate of all three frameworks. ItPrime Minister who had set the ball rolling when he was also stated that the NEPA is likely to be a non-announced the intention to establish a National solution to the vexed problems of environmentalEnvironment Protection Authority (“NEPA”) at the clearances and pollution mitigation in the country. TheNational Conference of Ministers of Environment and reasons for this are discussed later on in this article.Forests from all states of the country back in August2009. Later in 2010, the MoEF revised its note to propose a National Environment Assessment and Monitoring It was soon after this announcement that the MoEF Authority (“NEAMA”) that would manage approvalshad put out a discussion note on the NEPA. But even of industrial and infrastructure projects and monitorbefore the public could respond to the proposal, the them thereafter. What this essentially meant was thatgovernment firmed up its commitment to NEPA by the Ministry sought to outsource the functions of itsvirtue of its mention in the “U.S.-India Green Impact Assessment (“IA”) division that looks afterPartnership to Address Energy, Security, Climate environment clearances under the Environment ImpactChange, and Food Security.” A 24th November 2009 Assessment notification, 2006, and the function ofpress release of the U.S. Senate and Indian Prime ensuring compliance of environment clearanceMinisters office stated that, “the U.S. Environmental conditions laid out at the time of approvals. AccordingIndia Law News 22 Fall 2011

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