The principal bench of the National Green Tribunal (NGT) has quashed notification dated 09.12.2016 issued by the Ministry of Environment and Climate Change, whereby substantive provisions of EIA Notification, 2006, that require prior Environmental Clearance (EC) for building and construction activities were diluted. As per EIA notification dated 14.09.2006, building and construction activities having built-up area above 20,000 square meters required prior environmental clearance and consent to establish and operate from the State Pollution Control Boards. The notification issued on 09.12.2006 amended the EIA notification dated 14.09.2006 so as to dilute the provisions dealing with such construction activities.
The principal features of the amendment notification dated 09.12.2016 were as follows:
The legality of the amendment notification was challenged before the NGT. The respondents questioned the maintainability of the petition on the ground that the NGT did not have the power to test the constitutional validity of a notification under the Environment Protection Act. However, the preliminary objection was repelled by the NGT on the ground that the Tribunal had the inherent power to examine whether any office order or subordinate legislation issued under the EP Act is in consonance or not with the provisions of the environmental laws in force.
Principle of Non-Regression
The tribunal invoked the “Principle of Non-Regression” to deal with the matter. As per this principle, ‘environmental law should not be modified to the detriment of environmental protection’. It was found that the impugned notification deviated from this principle, as the same took away the power of the Pollution Control Boards and Committee to grant/refuse Consent to Establish and Consent to Operate for building and construction projects up to an area of 1,50,000 sq meter. It further diluted the entire environmental assessment framework under the EIA notification 2006, which has been periodically strengthened and amended by the numerous orders of the NGT.
It was also noted that impugned notification divested the Central government and the authorities under it of the powers under the EP Act, and conferred powers on the state government and the authorities under it to perform functions relating to assessment and granting of environment clearance to the projects. This, according to the tribunal, was a legal infirmity, as a subordinate legislation cannot divest an authority of powers. The Tribunal also found that the scheme envisaged by the impugned notification whereby EC conditions will be integrated in the building permits granted by local authorities was unreasonable and illegal, as the Union Ministry had no control over the procedure.
Also, the exemption granted by the notification for buildings having 1,50,000 square meters from the requirement of obtaining consent to establish and operate from the Pollution Control Boards was found to be unsustainable in law, as a subordinate legislation cannot take away the requirements imposed by another legislation. An authority cannot, in exercise of its subordinate legislation, exclude the operation of a substantive law, that is Water Act, 1974 and Air Act, 1981 enacted by the Parliament.
The tribunal also found that the notification was issued without conducting proper study and research. There was nothing on record to suggest that the quality of environment had increased warranting a dilution of conditions. It was also found that the objections filed to the draft notification were not considered before issuing the final notification. Moreover, some of the provisions of the final notification were absent in the draft notification.
It was also found that there was clear ambiguity and uncertainty in the Constitution of the Environmental Cell and its functions. There was no clarity as to the qualification which the member of the Environmental Cell should possess.
However, the tribunal also observed that the notification had certain laudable provisions, which aim at providing decentralized regulation for providing housing to the poor, and creation of a single window mechanism. Therefore, the objectionable provisions in the notification were severed and quashed, saving the other provisions. The ministry was directed not to give effect to the provisions until the provisions were re-examined in the light of the findings of the tribunal.