Govt acted outside scope of law to change environmental norms, says new report

A thinktank has found that of 123 ‘regulatory instruments’ used to govern Environment Protection Act, one-thirds were amendments that relaxed or made exemptions to the law.

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New Delhi: An analysis of amendments to the Environment Protection Act (EPA) made between March 2020 and March 2022 has found that nearly half were in the form of relaxations, “negatively impacting the clarity, predictability, and stability” of the law meant to protect the environment.

The EPA was established in 1986 with the purpose of “protecting and improving the quality of the environment”, as well as “preventing, controlling and abating environmental pollution”.

The Vidhi Centre for Legal Policy, an independent thinktank undertaking legal research, found that of 123 “regulatory instruments” used to govern the EPA, 39 — or one-thirds — were amendments to the law — 48 per cent of which were relaxations.

“Regulatory instruments” refer to orders, office memorandums (OMs), circulars, letters, and notifications, issued by the Ministry of Environment, Forest and Climate Change during the period of the analysis.

The thinktank’s analysis, titled ‘(De)Regulating the Environment?’, was published on its website on 6 December.

Majority of the amendments were through changes to the Environment Protection Rules and Environmental Impact Assessment (EIA) notification of 2006, the thinktank points out.

The Rules provide the fine print for implementation of the Act, while the EIA is a necessary component of the environment clearance process for large developmental projects. The EIA notification lays down the regulatory framework for the impact assessment.

According to Vidhi, some of the changes brought in are “in excess of the powers delegated under the EPA”, since they were made either without public consultation or through means outside the scope of the law.

Changes outside scope of law

Vidhi’s analysis parsed through various gazette notifications, OMs, circulars, letters and orders issued by the environment ministry to arrive at its conclusions.

Of 74 gazette notifications published by the Union government, 16 waived the requirement of issuing a public notice before making changes to the EIA notification of 2006. This was done in the name of “public interest” — a provision under the Environment Protection Rules.

“The term ‘public interest’ used in Rule 5(4) of the EP Rules cannot be interpreted beyond the scope and mandate of the EP Act,” says the Vidhi report, adding: “Some of the amendments brought to the EIA notification, 2006, using this exception, downgrade environmental protection measures imposed on polluting industries without assessing the potential environmental impact. This is against the mandate of the EP Act. Such amendments are not only ultra vires (outside the scope of the law) the EP Act but are also regressive in nature.”

The Vidhi report also flags amendments made to statutory procedures through office memorandums — documents that are usually used for internal government correspondence.

Last year, the government reduced effluent standards for tanneries — among the most polluting industries — by way of a notification, notes the report. In March 2020, it re-categorised pharmaceutical projects to relax the environmental clearance process for them through a notification. Extension of environmental clearances for certain housing projects, among other exemptions, was also done in a similar fashion.

In April, ThePrint had reported on the Union government using notifications and office memorandums to shape environmental clearance norms.

Independent experts believe the government is bringing in changes that resemble the controversial Draft EIA notification of 2020, which was ultimately dropped after public backlash. The Draft EIA sought to make drastic changes, like granting ex-post facto environment clearance for certain projects.

“It is extremely problematic that substantial changes in the statutory provisions are being introduced through OMs as they are meant to be internal documents of the government used for inter and intra departmental communication of decisions. Since they are not mandatorily required to be in the public domain, they should not be used as instruments for issuing important environmental decisions. Instead, any such decision should be widely published as a notification in the official Gazette of India,” says the Vidhi report.

(Edited by Nida Fatima Siddiqui)