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Ministry of Environment and Climate Change’s notification dated 9.12.2016 has been quashed by the principal bench of National Green Tribunal(NGT). The notification diluted the substantive provisions of EIA Notification, 2006 requiring prior Environmental Clearance (EC) for building and construction activities.
The EIA notification dated 14.09.2006 provided that prior EC and consent to establish and operate from the State Pollution Control Board is required by the construction and building activities having built up area above 20,000 sq meters. The notification dated 9.12.2016 amended the notification dated 14.09.2006 to dilute the provisions related to construction activities.
The amendment notification dated 9.12.2016 has following principal features:
The consent to establish and operate under Water Act and Air Act needed from the State Pollution Control Board for residential buildings upto 1,50,000 sq meters is not required.
Prior EC from SEIAA is no longer required for constructions with built up area above 20,000 sq meters. Instead, application for EC will be considered and granted by the local authority/development authority alongwith application for building permit.
The newly created Environment Cells will process the application for EC in the local authorities/development authorities with the help of accredited Qualified Building Environment Auditors (QBEA).
The time period for filing compliance reports regarding EC conditions has been enhanced to five years from six months.
Penalties will be imposed on the basis of suitable legislation for violating EC conditions.
The amendment notification’s legality was challenged before NGT. The question was raised in the petition that NGT did not have any power to test the constitutional validity of the notification under the Environment Protection Act. However, NGT repelled the preliminary objection on the ground that tribunal has the inherent power to examine the provisions under the environment protection act.
Principle of Non-Aggression has been invoked by NGT in this matter. The principle states that the environmental law should not be modified to the detriment of environmental protection. NGT stated that the notification has been deviated from this principle and in a way is taking away the power of Pollution Board. The notification has further diluted the entire environmental assessment framework under the notification of 2006.
The exemption granted for taking consent is also unsustainable in law. It was further stated by the NGT that the notification has been passed without conducting proper research and study. 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.
NGT has served and quashed the objectionable provisions in the notification saving 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.