On Thursday, the Supreme Court issued a notice of appeal to the Central Government seeking the appointment of a National Environmental Regulator to supervise and provide guidance on Environmental Clearance for projects. The case was headed by a bench headed by Chief Justice of India SA Bobde, and Senior Advocate Colin Gonsalves, assisted by Advocate Anupradha Singh, who appeared on behalf of the petitioner.
The PIL, filed by AOR Satya Mitra, seeks to create an independent regulatory authority in accordance with the order passed by the Supreme Court on 6 July 2011, in which the Apex Court examined, on the basis of its possible environmental effects, the need for an autonomous expert body to evaluate projects.
Multiple petitions have been filed in courts around the country wherein “issues of credibility and authenticity of EIA Reports have been called into question, the effectiveness of public consultation process has been assailed and where the appraising authorities have been found to have failed to adequately apply their minds before clearances have been granted”.
In view of the above, the July 2011 order provided for the appointment of a national regulator by the central government under Section 3 of the Environmental Protection Act, 1986. “This direction was given on the basis of an observation that the prevailing mechanism for processing, appraisals, and approval of environmental clearances proved to be deficient in many respects”.
In addition to finding in the 2011 order that no machinery existed for the implementation of the National Forest Policy, 1988, the Forest Conservation Act, 1980, and the Environment Protection Act, 1986, the Court further found it unacceptable that the Environment Impact Assessment (EIA) report was entrusted with the individual setting up the industry.
The Court therefore found that there was an urgent need for a regulator to be effective in preventing and stopping the contamination of the atmosphere and therefore ordered the appointment of a national regulator.
The instant petition argues that, in view of the clear directions contained in the judgement, the central government failed to create a national regulator as envisaged, and that the central government justified it by claiming that the directions were not binding in the nature of the suggestions.
Furthermore, the central government maintains that the aforementioned statutes place on the central government the role of a regulator and that those legislative functions cannot be transferred to any other authority. In addition, in the sense of the 2006 EIA Notification, an adequate system was already in place to evaluate projects as well as track and implement compliance with environmental conditions and there was no need for a National Regulator.
However, the Supreme Court reiterated its order in 2014 and explained that it had not merely recommended the appointment of a national regulator, but that it was a mandamus writ. The plea then goes on to stress that the EC procedures at present are neither clear nor objective.
“ECs are issued in an arbitrary manner because of, amongst other reasons, lack of permanency of EAC members, lack of validated data, ineffective monitoring and enforcement of environmental clearance conditions, and, in some cases, conflict of interest in the case of some members”.
fThe drat EIA notification was also referred to in the absence of institutional or procedural changes which, according to the plea, in the 2006 notification significantly diluted the safeguards. By ignoring the directions of the Apex Court, the petition argues that, pursuant to Article 21 of the Constitution, it is necessary to protect the health of the environment.
In the light of the above, the plea seeks the creation, in compliance with Section 3(3) of the Environment (Protection) Act, 1986, of a national regulator for the evaluation of projects and the enforcement of environmental conditions, as previously directed by the Supreme Court.