Construction Projects Don’t Need Environmental Clearances

At some unspecified point in the past, it seems a mysterious someone showed up at the Ministry of Environment and Forest (MoEF) with “suggestions”. If this sounds vague, then blame it on the ministry’s website, which said it had “received suggestions for ensuring Ease of Doing Responsible Business; and streamlining the permissions for buildings and construction sector which is important for providing houses and for this purpose the scheme of Housing for all by 2022 with an objective of making available affordable housing to weaker sections”. Net result, the MoEF has tweaked the Environment Impact Assessment (EIA) notification 2006 so that now, construction projects no longer need environmental clearances (EC).

From the way they’re explained on the Ministry website, the amendments to the EIA notification seem to be to facilitate “affordable housing”. However, as it turns out, these actually didn’t need ECs. “Projects providing housing for poor and underprivileged people do not require clearance to begin with,” said Ritwick Dutta, an environment lawyer and managing trustee of the Legal Initiative for Forest and Environment, an organisation that legally takes up environmental matters. “They are less than 20,000 square meters. Which of the projects under Indira Awas Yojna (a government housing scheme to provide housing to the rural poor, now called the Pradhan Mantri Gramin Awaas Yojana) are more than 20,000 square meters?” he asked.

According to Dutta and other activists, the amendment merely serves to profit the construction lobby. Kanchi Kohli, legal research director for the Centre for Policy Research’s environment justice program Namati, pointed out that the amendment essentially argues that the construction sector is non-polluting and hence needs no environmental regulation. This, she argues, is far from true.

Kohli said that construction projects contribute to environmental degradation in two ways –disrupting the land they are built on (wetland, forest area, etc.) and the elements used for construction (water, building materials, etc.). “Over all if you look at the footprint of these construction projects, it’s not entirely benign, both in terms of what they consume and what they replace,” she said.

The EIA under the Environment Protection Act (EPA) lays down rules which require projects – building, industrial, power etc. – to get an EC before going ahead with construction. Under this notification, all projects were divided in two categories, based on their size – A and B. The projects which fall under A are larger in scale and until recently, had to get an EC from the MoEF. The latter need to get clearance from a State Environment Impact Assessment Authority (SEIAA).

The process of getting an EC is elaborate. It involves a “screening” of the project by a State Expert Appraisal Committee or “scoping” by an Expert Appraisal Committee at the central level. This is followed by public consultation on the project, involving those who might be affected by it, ultimately leading to a final evaluation by the appraisal committee.    

However, now, with the amendment, building projects are exempt from all of this. The MoEF will accredit agencies (which may be either private or public bodies) as Qualified Building Environment Auditors “to assess and certify the building projects.” The final word will rest with local authorities like “Development Authorities, Municipal Corporations, etc”, according to the amendment. The Delhi Development Authority had made these changes in its building by-laws even before the draft was published in March this year.

Manoj Kumar Singh, the MoEF’s Joint Secretary told Newslaundry that environmental clearances are conventionally granted at local and district levels, rather than at the central or state level. “The beauty of this new system is that the permission of giving building construction and EC will be appraised in a transparent way by a local committee,” Singh said. According to him, the appraisal committee wouldn’t be sitting in the state capital or the centre anymore. The committee will be the local authority. However, there is no clarity about how this appraisal would be made and if it would be done during construction or afterwards.

There’s also the problem of legality. Earlier, construction was regulated by the Air Act, the Water Act and the EIA notification,” said Dutta. Now, all three legislations are gone. “Now a citizen cannot approach the National Green Tribunal (NGT). If you do away with the law, then there is no legality,” he said.

What further complicates is that the EIA is a notification, not a law and there are different statutory compliances under the Air and Water Acts. “So how can you remove the compliances under these acts by amending a notification?” asked Dutta. The MoEF thinks otherwise. “A 2010 Delhi High Court order has said that on residential buildings, Air act and Water act do not apply,” Singh said.

However, not all is lost. The amendment was challenged on December 21 in the NGT by the Society for Protection of Environment and Biodiversity, an NGO which works in the area of environmental justice. It has been challenged on the ground that the amendment “defeats the very purpose of environment assessment process for one of the fastest growing development sectors which has huge environmental implication.” The next hearing is scheduled for January 4.

It might be that the MoEF is actually serious about trying to facilitate business activity in India. The question is, at what cost?