Waiver for stalled projects in green nod validity

The Indian environment ministry will waive litigation periods affecting environmental clearances, benefiting stalled infrastructure projects amid concerns from environmentalists.

New Delhi

Waiver for stalled projects in green nod validity

The union environment ministry has decided to waive the period during which projects are stalled on account of litigation from the period of validity of the environmental clearance (EC) already granted to them -- a move that will benefit infrastructure projects facing court cases.

Several significant infrastructure projects such as the Great Nicobar Holistic Development Project are likely to benefit from this relaxation by the Centre that was announced in an office memorandum dated October 30.

The ministry said in the memo, which has been seen by HT, that it has been brought to its notice that the implementation of some projets for which ECs have been granted has been stalled due to proceedings before National Company Law Tribunal (NCLT) or courts.

“These proceedings often take significant time to get resolved and are not in the control of the project proponent. As a result of these proceedings, either the validity of the ECs expire or the project proponent is left with a reduced duration for commencement of production operations in the project or activity, or completion of all construction operations in case of construction before the said EC expires. Such a duration is insufficient to start production operations, or completion of all construction operations in case of construction projects,” the ministry added.

As per the provisions of EIA Notification 2006, in the event of the project or activity not starting production operations, or all construction operations not being completed, within the validity of the EC granted, then the developer has to apply for a new EC, “which results in further delay for no fault on the part of the project proponent,” the ministry said.

“The matter has been examined in the Ministry and it has been decided that, EC validity as laid down under EIA Notification, 2006, as amended, needs to be rationalised with regard to the time lost in view of proceedings before NCLT or courts. In this regard, the ministry hereby clarifies that the following time period during which the project proponent was unable to implement the EC granted for the related project/activities shall be treated as a zero period for calculating the validity of the EC,” it added.

However, in the event that the period lost in litigation or in NCLT proceedings is more than three years, the concerned State Pollution Control Board or Pollution Control Committee shall add appropriate environmental safeguards in the Consent to Operate (СТО) conditions based on the changes in the site conditions that may have taken place during this period, the ministry’s memo said.

There is a petition pending in the National Green Tribunal challenging various aspects of the Great Nicobar project including forest and environment clearance granted to it. There is also a SC-ordered stay on several hydropower projects in Uttarakhand.

Environmentalists said extending ECs thus is not a good idea.

“Allowing the clearances beyond the date of expiration only because they are under review will have major ramifications. Consider the case of hydropower projects in Uttarakhand, which is being contested in the SC since 2013. Some 24 projects have been stayed by the SC and for more than a decade so many disasters have happened that the same EC given then, actually holds no relevance today since the topography and the ecology has completely changed. To even consider earlier given clearances as valid in a post- disaster Himalayan state will have severe ramifications in the fragile ecosystem of the state and to now giving validation to the previously awarded clearances is just shocking,” said Mallika Bhanot, environmentalist and member of Ganga Ahvaan, a civil society collective.

Debadityo Sinha, lead –– climate and ecosystems — at Vidhi Centre for Legal Policy, said, “Firstly, the new OM’s “zero period” exclusion, without amending the EIA Notification 2006, alters a fundamental statutory condition of Environmental Clearance — its validity period. The EIA Notification, 2006, issued under the Environment (Protection) Act, 1986, makes this validity a statutory requirement, not an administrative discretion. An Office Memorandum cannot override or amend a statutory notification or the parent Act. Such vague circulars only erode accountability and public participation, and is therefore regressive and ‘ultra vires’ of the parent statute. Further, Clause 4(a) may be misused by project proponents whose ECs have been quashed or stayed by the NGT or Supreme Court for violations of environmental regulations. Granting benefit during such stays violates the legal maxim- ex turpi causa non oritur actio, that is no benefit can arise from an illegal act.”