2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A.

129
ENVIRONMENTAL MANAGEMENT THROUGH
ENVIRONMENT IMPACT ASSESSMENT
Sukh Pal Singh
*
I. INTRODUCTION
Modern technological mans craze for more and more material
wealth and physical comforts has unknowingly pushed him into the world
of unsustainable trade, commerce, and industry, for the carrying of which,
a number of developmental activities-hazardous and non-hazardous
involving excessive use of science and technology necessarily take
place. So long as such activities are permitted to be undertaken without
properly assessing their significant adverse effects impacts upon the
environment and ecology they are most likely to cause inexpressible
damage to the human beings, flora, fauna, soil, water, air, climate,
landscape, intricate web of interrelationship between and among these
factors, material assets and the cultural heritage. !herefore, for
identifying before hand the significant adverse effects of a developmental
pro"ect and for providing effective measures to avoid, reduce and remedy
those effects, undertaking of an environment impact assessment
exercise in consultation with all parties who are likely to be affected or
have an interest in the pro"ect is sine- #ua-non to grant permission for
taking any steps to set up establish such pro"ects. !hus environment
impact assessment is a precautionary measure for preventing at source
the possible harms of a development pro"ect. $ecognizing the need and
importance of environment impact assessment exercise for maintaining
the balance between environment and development the %overnment of
&ndia issued an 'nvironment &mpact (ssessment )otification on *anuary
+,, -../. (n attempt has been made in this paper to discuss and
examine the salient features of '&( )otification and issues related
thereto.
II. CONCEPT OF ENVIRONMENT IMPACT ASSESSMENT
(a) Meaning
!he 'nvironment &mpact (ssessment 0'&(1 is a process widely
employed to assess the impact of various activities on the environment
with a view to minimize such impact to a maximum possible extent. &n
this process the developer and other bodies carry out an information
gathering exercise, which enables the concerned planning authority to
understand the environmental effects of a development before deciding
whether to grant planning permission to that proposal or not. !o get the
best result, this process, therefore, makes the systematic use of the best
ob"ective sources of information on environmental effects of
*
. 2.Sc. 33.M. 4h.5. 03aw1, $eader, 6aculty of 3aw, 2.7.8., 9aranasi.
31 Ban.L.J.(2002) 105-130
-:; !7' 2()($(S 3(< *=8$)(3 >9ol.:-
developmental plans and lays emphasis on the use of best available
techni#ue to gather that information. (n ideal '&( involves an absolutely
impartial collation of information produced in a coherent, sound and
complete form and allows the planning authorities and members of the
public to scrutinize the proposal, assess the weight of predicted effect
and suggest modifications or mitigations where appropriate.
-
!hus, '&( is a techni#ue evolved to reconcile conflicting interests
in society and a multidisciplinary process involving different types of
knowledge and expertise. 6or this reason '&( has to pass through
various stages encountering many complex #uestions. 6irst of all a
preliminary study of the proposed plan is to be made with a view to
ascertain whether such plan has potential to cause considerable adverse
effects on the environment. &f adverse effect is a strong possibility then
'&( becomes inevitable, otherwise not. !hereafter, a study of the
proposed plan is made with a view to examine whether there are
secondary effects of socio-economic importance such as density of
population, loss of employment and loss of civic amenities. (fter
establishing such necessities of '&( and ascertaining its secondary
effects, an in-depth study is made into the cumulative effects of the
proposed plan on the environment. <here the proposed plan has a
potential to have an adverse impact across the national boundaries also,
there particular care has to be taken to avoid any damage to the ecology
and environment of the neighbouring country.
(b) Obje!i"e# $% En"i&$n'en! I'(a! A##e##'en!
!he main ob"ective of '&( is to reconcile the possible conflict
between environmental imperatives and developmental needs with a
view to promote sustainable development. '&( guides administrative
agencies in balancing conflicting social values and environmental #uality
by making best choice among various available options. '&( foresees
potential dangers to environment and manages to avoid them. !he
?ouncil of 'uropean 'conomic ?ommittee describes the ob"ectives of
'&( as follows@
AThe effect of a project on the environment must be assessed in
order to take account of the concerns to protect human health, to
contribute by means of a better environment to the quality of life, to
ensure maintenance of the diversity of species and to maintain the
reproductive capacity of the ecosystem as a basic resource of life.
According to EIA, the best environment policy is to prevent adverse
impact rather than subsequently try and counteract it.

!hus, '&( is a preventive exercise in the field of environment
protection, which is ecologically benign and economically viable.
1
Simon 2all B Stuart 2ell, Environmental !a" &&nd &ndian $eprint, 0-..C1 at
+:D.
2
. E''? 5irective dated +, *une -.FD. FD::,''? of +, *une -.FD. =*3
-,D/;, D *uly -.FDE.
2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A. 131
Moreover, prevention is always better than cure and cheaper than
remedy
.:
() I'($&!ane $% Publi )ea&ing %$& EIA
'&( without compulsory public participation and right to
environmental information is a mere formality, which cannot protect the
environment in the true sense. 2rundtland $eport 0-.F,1 while discussing
the necessity of public participation argues as follows@
#$ublic inquiries and hearings on the development and
environment impacts can help greatly in dra"ing attention to
different points of vie". %ree access to relevant information and
the availability of alternative sources of technical e&pertise can
provide an informed basis for public discussion. 'hen the
environmental impact of a proposed project is particularly high,
public scrutiny of the case should be mandatory and, "herever
feasible, the decision should be subject to prior public approval,
perhaps by referendum.
(
!he rationale behind public participation in environmental
decision-making process has further been explained by 3othar %undling
0-.F;1 in the following words.
#'ith the increased protection of environment) *tates have
assumed the responsibility to meet dangers and risks, "hich may
threaten a great number of citi+ens and even the general public.
The open landscape, the "ater and the air, have come to be
considered as the common property of all, and their rational
management is not only in the interest of one single individual
but in the interest of all. Therefore, *tates have increasingly
begun to recogni+e that, in the la" of environmental protection,
the traditional structures of individual participation and judicial
protection of the individual are inadequate, and that the public,
interested citi+ens and organi+ations ought to have the
opportunity to participate in the administrative decision,making
process. 'hen it is the public in "hose interest environmental
protection measures are taken, and "hen it is the public "ho are
e&pected to accept and comply "ith those measures, the public
should have the chance to develop and articulate its opinion, and
to air it during the environmental decision,making process.
-
&n the words of *asanoff@
3
. See 4. 3eela Grishnan, Environmental !a" in India 0-...1, pp. -DD--DC.
4
. <orld ?ommission on 'nvironment and 5evelopment, =ur
?ommon 6uture 0-.F,1 at C:-C/.
5
. 3othar %undling, H4ublic 4articipation in 'nvironmental 5ecision-
Making, in Michael 2othe 0ed1, Trend in Environmental $olicy and !a"
0-.F;1 pp.-:---D:, cited in 'nvironmental 3aw in &ndia 0-...1 by 4.
3eelakrishnan at -,;.
-:+ !7' 2()($(S 3(< *=8$)(3 >9ol.:-
The tragedy in .hopal can be seen not merely as a failure of
technology, but as a failure of kno"ledge. The accident might not
have happened at all / in any case, its impact could have been
greatly lessened / if right people had obtained the right
information at a time "hen they "ere capable of appreciating it
and taking appropriate preventing action. 0econstructions of the
events in .hopal sho" that there "ere striking gaps both in the
information available about 1I2 and in the process of
communicating this information "ithin and outside the 3nion
2arbide organi+ation. A central challenge for future 4right,to,
kno"5 policies is to bridge the information gaps and the
communication gaps that are likely to arise in the course of
technology transfer.
6
!he role of public participation in decision-making is to legitimize
such decisions and if the same is carried out properly, it may also
improve the #uality thereof. 4rinciple -; of the $io 5eclaration on
'nvironment and 5evelopment, -..+ also proclaims as follows@
#Environmental issues are best handled "ith the participation of
all concerned citi+ens, at the relevant level. At the national level,
each individual shall have appropriate access to information
concerning the environment that is held by public authorities,
including information on ha+ardous materials and activities in
their communities, and the opportunity to participate in decision
,making processes. *tates shall facilitate and encourage public
a"areness and participation by making information "idely
available. Effective access to judicial and administrative
proceedings, including redress and remedy, shall be provided.
!hus, public participation in decision making definitely
augments measures for environmental protection and reflects the
aspirations of both, the present and the future generations.
(*) Nee* %$& Na!i$nal P$li+ ab$u! EIA
&n the present era of materialism and consumerism one cannot
afford to ignore or undermine the utility and importance of the socio-
economic developmental aspects of human life and the need to set up
big pro"ects industries involving sophisticated techno-scientific
mechanisms to realise the same. !herefore, to ensure the balance
between developmental needs reasonably essential to maintain
promote the #uality of human life and paramount obligation of the human
beings to preserve natures gifts and pass on a safe clean environment
with sufficient natural resources to future generations, a viable national
policy recognizing the importance of mandatory model of '&( and public
hearing before granting consent clearance to set up pro"ects
industries etc. is indispensable. !he Supreme ?ourt of &ndia in 1. 2.

. *asanoff@ !he 2hopal 5isaster and the $ight to Gnow, +, *ocial *cience
and 1edicine ---: 0-.FF1.
2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A. 133
1ehta v. 3nion of India
7
has also emphasized the need to evolve a
national policy for this purpose in the following words@
A<e would, therefore, suggest that a 7igh 4owered authority
should be set-up by the %overnment of &ndia in consultation
with the central board for overseeing functioning of hazardous
industries with a view to ensuring that there are no defects or
deficiencies in the design structure or #uality of their plant and
machinery, there is no negligence in maintenance and
operation of the plant and e#uipment and necessary safety
devices and instrument are installed and are in operation and
proper and ade#uate safety standards and procedures are
strictly followedE.
F
&t is also necessary to point out that when science and technology are
increasingly employed in producing goods and services calculated to improve the
#uality of life, there is a certain element of hazard or risk inherent in the very use
of science and technology and it is not possible to totally eliminate such hazard or
risk altogether. <e cannot possibly adopt a policy of not having any chemical or
other hazardous industries merely because they pose hazard or risk to the
community. &f such a policy were adopted it would mean the end of all progress
and development. Such industries even if hazardous, have to be set-up since
they are essential for economic development and advancement of well - being of
the people, we can only hope to reduce the element of hazard or risk to the
community by taking necessary steps for locating such industries in a manner
which would pose least risk or danger to the community and maximizing safety
re#uirements in such industries. <e would, therefore like to impress upon the
%overnment of &ndia to evolve a national policy for location of chemical and other
hazardous industries in areas where population is scarce and there is a little
hazard or risk to the community and when hazardous industries are located in
such area, every care must be taken to see that large human habitation does not
grow around them. !here should preferably be a green belt of - to D km width
around such hazardous industries.
.
(e) M$*el# $% EIA
!he models adopted by different nations for EIA may be
classified into two categories, namely, the mandatory model and
discretionary model. &n mandatory model, the scope, nature, and limits of
discretion and procedure for '&( are governed either by a specific
statute
-;
or by delegated legislation.
--
. &n mandatory model it is always
!
. (&$ -.F, S? .CD
"
. &bid. at .F;-.F-.
9
. Ibid.
10
. )ational 'nvironmental 4olicy (ct, -.C. 0)'4(1 of the 8nited States, is
an example of a specific legislation making environmental impact
assessment of pro"ects mandatory.
11
. !own and ?ountry 4lanning 0(ssessment of 'nvironmental 'ffects1
$egulations, -.FF 0S& -.FF )o --..1 is a subordinate legislation, made
under !own and ?ountry 4lanning (ct, in 2ritain which is an example of
delegated legislation making it mandatory to have an environment
assessment of pro"ects.
-:/ !7' 2()($(S 3(< *=8$)(3 >9ol.:-
obligatory on the decision-making agency to exercise its discretionary
power to carry out the '&(. !he obligatory character of mandatory model
compels the initiator to formulate an environmentally sound pro"ect as
also the pro"ect proponent to prepare an environmentally sound
environment impact statement 0'&S1. '&S includes cumulative direct and
indirect effect of the pro"ect on environment and serves as a guarantee of
the right to information and a basis for proper impact assessment. !he
'&S is re#uired to be published in order to provide an opportunity to
various persons and groups representing different environmental
interests and experts in environmental matters to express their views on
the merits and demerits of the pro"ect. !he publication of '&S works as a
notice of environmental conse#uences of the pro"ect in #uestion to all
concerned and provides them an opportunity to verify the genuineness of
the decision making process. 8nder mandatory model, "udicial review of
the substantive and procedural re#uirement of '&( is possible which may
check arbitrariness or abuse of discretion and help in the formulation of
uniform standard for preparing '&S. 2riefly speaking, '&S makes the
thorough analysis of the pro"ect possible through which best possible
mechanism to mitigate environmental risks to the maximum possible
extent in carrying the pro"ect may be sought.
&n discretionary model the scope, nature and limits of discretion
and procedures for environment impact assessment are governed by
administrative agencies that largely go by executive policy, administrative
discretion, and political expediency. 2riefly speaking in discretionary
model absolute freedom on the executive is conferred by law.
7owever, both the models have their own merits and demerits
but the mandatory model certainly - seems better than the discretionary
model because in mandatory model public participation and "udicial
review make the '&( more reasoned and ob"ective on the basis of which
the environment may be effectively managed and protected in a more
rational way. Moreover, '&( under mandatory model possesses an
educational value which conscientizes not only the people, but also their
leaders and discloses the perennial harm that may be disguised in the
short-term benefits of an environmentally harmful pro"ect.
-+
=n the other
hand, the discretionary model does not drive strength from a law but
solely depends for its execution on the discretionary power of an
administrative agency that may go arbitrary and misuse or abuse its
discretion because under this model reason for decisions by such agency
need not be disclosed. !hus, discretionary model may neglect vital
environmental consideration while performing '&( exercise, which may
cause irreparable loss to ecology and environment. !he 2hopal
catastrophe is said is to be the victim of a discretionary model, which
failed to realize the mandatory need for an '&(.
12
. *upra )ote : pp -D., -C+.
2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A. 135
III. INTERNATIONA, PERSPECTIVE OF EIA AND ITS
APP,ICATION IN INDIA-
(s already noted, the main purpose of undertaking '&( is to
identify possible environmental harm of a proposed industry or pro"ect so
that the same may be avoided in case they are serious or irreversible in
nature or controlled minimized if they are manageable by using best
available technologies. &nitially the assimilative capacity principle as
provided by 4rinciple C
-:
of the 8) ?onference on 7uman 'nvironment
held at Stockholm in -.,+ was the guiding factor to avoid or minimize the
environmental harms. !his principle assumed that science could provide
the policy makers with the information and means to avoid encroaching
upon the capacity of the environment to assimilate 0adverse1 impacts 0of
an industry pro"ect1 and that relevant technical experts would be
available when environmental harm predicted and there would be
sufficient time to act in order to avoid such harm. (ccording to this
principle, the environment has the capacity, to some extent, to assimilate
substances to render them harmless and, therefore, Ithe solution to
pollution is dilution. 7owever, scientific uncertainty as to the proofs of
environmental harms and means to avoid them and its changing
character led to ma"or changes in the concepts governing guiding such
issues. ?onse#uently, the emphasis from assimilative capacity principle
got shifted to the precautionary principle when the 8nited )ations laid
down that when adverse effects of an activity can not be fully
appreciated, then it should not be allowed to proceed. !his is enshrined
in 4rinciple -- of the 8) %eneral (ssembly $esolution on <orld ?harter
for )ature -.F+ as follows@
8Activities "hich might have an impact on 9ature shall be
controlled, and the best available technologies that minimi+e
significant risks to 9ature or other adverse effects shall be used:
in particular;
4a5 Activities "hich are likely to cause irreversible damage to
9ature shall be avoided.
4b5 Activities "hich are likely to pose a significant risk to 9ature
shall be preceded by an e&haustive e&amination, their
proponents shall demonstrate that e&pected benefits
out"eigh potential damage to 9ature.
4c5 Activities "hich may disturb 9ature shall be preceded by
assessment of their consequences, and environmental
impact studies of development projects shall be conducted
sufficiently in advance, and if they are to be undertaken,
13
. !he discharge of toxic substances or of other substances and the
release of heat, in such #uantities or concentrations as to exceed the
capacity of the environment to render them harmless, must be halted in
order to ensure that serious or irreversible damage is not inflicted upon
eco-system.
-:C !7' 2()($(S 3(< *=8$)(3 >9ol.:-
such activities shall be planned and carried out so to
minimi+e potential adverse effects.<
Geeping in view the efficacious character of 4recautionary
4rinciple the 8nited )ations ?onference on 'nvironment and
5evelopment held at $io de *aneiro in -..+ recognised this 4rinciple as
a norm for the nations of the world to pursue. 4rinciple -D of this
?onference described the 4recautionary 4rinciple as follows@
#In order to protect the environment, the precautionary approach
shall be "idely applied by *tates according to their capabilities.
'here there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as a reason for
postponing cost,effective measures to prevent environmental
degradation.
!he underlying idea behind this principle is that Ian ounce of
precaution is worth a pound of cure and if looked at its acceptance from
international prospective in the past, it is said to be a principle Iborn
before it was conceived. !he &ndian "udiciary has also started applying
this principle with great care and enthusiasm as soon as it was born,
holding that such principles are part of the environmental law of the land.
!he (pex ?ourt of &ndia has very brilliantly explained the concept of this
4rinciple in =ellore 2iti+ens case,
-/
successfully applied the same in Taj
Trape+ium case
-D
and #uite categorically stated in 1.=. 9ayudu case
-C
that Iit is better to err on the side of precaution and prevent
environmental harm than to run the risk of irreversible harm<.
-,
!hus, techno-scientific inade#uacies and uncertainties are the
mother of precautionary principle wherein anticipation of environmental
harm, adoption of preventive measures, option of minimum
environmentally harmful ventures and burden of proof on the developer
that the venture is environmentally benign there by making him more
cautions even while planning and designing the pro"ect are seriously
involved. 7owever, there is a caution against this principle that
14
. =ellore 2iti+ens 'elfare %orum v. 3nion of India 0-..C1 D S?? C/,
(s per *ustice Guldeep Singh Ithe 4recautionary principle in the context of
the municipal law means@
0a1 'nvironmental measures-by the State %overnment and statutory
authorities- must anticipate, prevent and attack the cause of environmental
degradation.
0b1 <here there are threats of serious and irreversible damage, lack of
scientific certainty should not be used as a reason for postponing
measures to prevent environmental degradation.
0c1 !he Ionus of proof is on the actor or the developer industrialist to
show that his action is environmentally benign.
15
. 1.2. 1ehta v. 3nion of India 0-..,1 + sec :D: 0!a" !rapezium ?ase1.
1
. A.$. $ollution 2ontrol .oard v. 1.=. 9ayudu (&$ -... F-+ S? and
0+;;-1 F S?? ,CD.
1!
. Ibid. as per *ustice M. *agannadha $ao at F+;.
2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A. 13!
precautionary obligations must not only be triggered by suspicion of
concrete danger but also by "ustified concern or risk potential
.-F
!he 4recautionary 4rinciple comprises a number of attributes,
which make it an effective instrument for avoiding environmental harms
involving scientific uncertainties by adopting necessary measures and
promoting the development of clean technology. &n fact, precautionary
principle operates as a rule of evidence and it specially deals with the
onus of proof in environmental cases. !his principle shifts the
responsibility on the polluter to prove that his action is environmentally
benign.
IV. STATUTOR. FRAME/OR0 OF EIA IN INDIA -
!he 4lanning ?ommission of &ndia in its Seventh 6ive Jear 4lan
stressed the need for '&( in &ndia as follows@
>.y the year ???, industrialisation of the country "ill have
reached a stage "hen in the absence of effective remedial
measures, severe problems of air, "ater and land pollution "ill
assume serious proportions....In project planning, besides the
availability of ra" material, man po"er and funds, decisions
regarding the use of the environment "ill have to be taken,
investments built,in for minimi+ing environmental damage or
degradation. This "ill apply equally to the public and private
sectors. A ne" type of e&pertise in environmental impact analysis
"ill have to be developed and applied for deciding the optimum
location of any project>.
@A
(fter the 8nited )ations ?onference on 7uman 'nvironment
held at Stockholm in -.,+, nations of the world in general and signatories
to this ?onference in particular became serious about taking necessary
measures including legislative ones for the protection of the earths
natural resourcesK prevention, control and abatement of environmental
pollution, and evolving principles of liability and compensation to redress
the grievances of the victims of environmental pollution. &ndia, being
signatory to this ?onference, did not lag behind and came up with certain
(cts, $ules and )otifications to achieve these ob"ectives. )ot only this
but two very important (rticles, vi+., /F( and D-(0g1 were added to the
?onstitution of &ndia through the ?onstitution 6orty Second (mendment
(ct, -.,C, which make it obligatory for the State and citizens as well to
protect the environment. 6rom amongst these legislatives measures the
<ater 04revention and ?ontrol of 4ollution1 (ct, -.,/, the (ir 04revention
and ?ontrol of 4ollution1 (ct, -.F-, the 'nvironment 04rotection1 (ct,
-.FC along with the $ules made there under and the 'nvironment &mpact
(ssessment )otification of -../ are most relevant to the aspect of the
protection of environment and prevention, control and abatement of
1"
. See 4. 3eelakrishan, Environmental !a" 2ase .ook, 0+;;/1 p. +.,.
19
. Seventh 6ive Jear 4lan@ -.FD-.;, 4lanning ?ommission, %overnment
of &ndia 0-.FD1
-:F !7' 2()($(S 3(< *=8$)(3 >9ol.:-
environmental pollution. Such provisions of these enactments as have
direct or indirect bearing on the '&( in &ndia are discussed below@
(a) EIA un*e& An!i1($llu!i$n ,egi#la!i$n#
(lthough &ndian environmental law in general and the <ater
04revention and ?ontrol of 4ollution1 (ct, -.,/, the (ir 04revention and
?ontrol of 4ollution1 (ct, -.F- and the 'nvironment 04rotection1 (ct,
-.FC,and rules made there-under in particular comprehensively provide
for the maintenance restoration of the wholesomeness of the
environment and prevention, control and abatement of environmental
pollution, yet they suffer from many inherent weaknesses giving rise to
half hearted implementation and poor compliance of environmental law
which in turn defeats its very ob"ectives to a large extent.
=ne of such ma"or weaknesses relates to that part of pollution
prevention and control mechanism provided under the post-
independence anti-pollution (cts which exclusively deal with the disposal
of an application given to the State 4ollution ?ontrol 2oard for the
purpose of obtaining consent permission to establish new or continue
with an already existing industry, operation or process which is likely to
affect the environment adversely.
+;
!hese (cts certainly, for the purpose
of managing the environment, make it mandatory to obtain consent of the
2oard for the above said purposes but do not envisage any 'nvironment
&mpact (ssessment in the strict sense of the term as a condition
precedent for granting or refusing such consent. !he S4?2, while
dealing with such application may make such in#uiry as it may deem fit in
respect of the consent application and in making such in#uiry, the 2oard
is re#uired to follow such procedure as prescribed by $ules made under
the above mentioned (cts.
+-
!hese provisions confer absolute discretion
on the 2oard to decide whether an in#uiry should be made by it before
disposing of the consent application or not. &f the 2oard decides to make
an in#uiry then, of course, it has to follow the procedure prescribed by
$ules, but surprisingly such rules do not provide for any serious in#uiry or
meaningful public participation.
++
4ublic hearing or participation which is
an integral part of '&(, utterly lacks while completing such in#uiry. &n the
name of public participation, only a register containing the conditions
sub"ect to which consent in granted, is maintained by the 2oard and that
too is not open to the general public for inspection, but is confined only to
a person interested in or affected by an outlet or effluent without making it
explicit as to who shall fall into the category of interested or affected
personsL
.+:
20
. See ?hapter &9 of the <ater and the (ir (cts and ?hapter &&& of the
'nvironment 04rotection1 (ct
21
. Section +D0:1 of the <ater (ct, -.,/ and Sec +- 0:1 of the (ir (ct, -.F-.
22
. $ule :; of 8ttar 4radesh 0?onsent for 5ischarge of Sewage and !rade
'ffluents1 $ules, -.F-.
23
. Sec. +D0C1 of the <ater (ct, -.,/
2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A. 139
Similarly, the above said (cts with a view to give relief against the
pre"udicial order of the S4?2, provide for an appeal against such order
but the right to appeal is again confined to a Hperson aggrieved by an
order and the clause Haggrieved by order seems to have been narrowly
interpreted by including in it the applicant only against whom a pre"udicial
order has been made by the 2oard and exclude the general public
wrongly from the category of the Ipersons aggrieved by order. !his
provision appears to favour the potential polluters by ignoring the
grievances of the general public who are the potential victims of the
environmental hazardspollutions.
!hus, there is no provision in any of our statutes, which makes
the '&( study compulsory in the sense it exists in 8S(. &nitially, the
Ministry of 'nvironment and 6orests, %overnment of &ndia, had been
making an assessment of ma"or development pro"ects on the basis of
departmental guidelines. !he pro"ect authorities, following these
guidelines, were re#uired to submit environmental information to the
aforesaid Ministry by filling out #uestionnaires or checklist along with their
detailed pro"ect report. !he Ministry also insisted sometimes on '&S
accompanying an 'nvironmental Management 4lan. !he preliminary task
of environmental appraisal was carried out by the multi-disciplinary staff
in the ministryMs impact assessment division, which was finally considered
by the ministryMs Menvironmental appraisal committeeM. !he committee
held discussions with the pro"ect authorities and, wherever necessary,
visited the sites for on-the spot assessment. =n the basis of these
deliberations and evaluations, the committee approved or re"ected the
pro"ect.
+/
2ut this system of impact assessment suffered from certain
inherent weaknesses. 6or example, it did not allow the publication of
environmental information relating to pro"ects under study nor did it
involve the scientists and environmentalists whose views could matter or
the general public which could be adversely affected by such pro"ects.
2esides it, the pro"ect authorities for escalating costs of the pro"ects by
unduly delaying its clearance criticized the Ministry. !he Ministry, in turn,
blamed the pro"ect authorities for ignoring the environment and failing to
integrate ecological and economical considerations in preparing the
pro"ect report. !his gave rise to hostility between the pro"ect authorities
and the Ministry of 'nvironment, which could be averted if mandatory
model for '&( were adopted under our statutes, which could compel the
pro"ect authorities to consider environmental factors from the very
inception of the pro"ect.
+D
24
. See (rmin $osercranz et al. 0eds.1 Environmental !a" and $olicy in
India 0-..-1 at +,,.
25
. See Shyam ( 5ivan, Making &ndian 2ureaucracies !hink @ Suggestions
for 'nvironment &mpact (nalysis in &ndia 2ased on the (merican
'xperience, :; *&3& +C: 0-.FF1.
-/; !7' 2()($(S 3(< *=8$)(3 >9ol.:-
(b) D&a%! EIA N$!i%ia!i$n2 3445
&n &ndia the environment impact assessment could have been
institutionalized through the Mnecessary and expedient clauseM contained
in sec. : 0-1 of the 'nvironment 04rotection1 (ct, -.FC as it is the source
and reservoir of all powers necessary to protect and improve the
environment. 7owever, it could be partially realized only in -.F. through
$ule F0+1 of the 7azardous <astes 0Management 7andling1 $ules, -.F.
that provides for environment impact study without providing any
procedure therefor. !herefore, keeping in view the urgent need for proper
'&(, a draft '&( notification was published in -..+.
+C
!his notification
made it compulsory for certain pro"ects to get environmental clearance
from the ?entral %overnment
+,
or the State %overnment
+F
as the case
may be. !his notification contained many rational provisions, for example,
necessity of environmental clearance by ?entral %overnment where the
pro"ect meant for State clearance exceeded certain prescribed limits
+.
,
review of State %overnmentMs clearance by the ?entral %overnment on
the written representation against it by the affected persons or where
environmental imperatives and the necessary guidelines laid down by the
?entral Ministry are ignored by State %overnment in giving clearance
:;
,
inclusion of environmental impact assessment report and environmental
impact management plan prepared on the lines of M='6 guidelines in
the application for new pro"ect or for the modernisation of an existing
industry, and evaluation and assessment of these reports and plans by
the impact assessment agency in consultation with a ?ommittee of
'xperts consisting of ecologists, social scientists and representatives of
)%=s.
:-
!he impact assessment agencies contemplated under the draft
2
. S=FD 0'1 dated +. *anuary -..+, for text see -..+ 2urrent 2entral
!egislation, 4art &&& D.-CC.
2!
. Id, at C-, Schedule &, lists +/ industries, which include atomic power,
thermal power, multipurpose river valley pro"ects, railway lines involving
ac#uisition of non-railway lands, refineries and fertilizer plants.
2"
. Id, at C+, C:. &n order to get clearance from the State %overnment, the
industries or pro"ects should be within the maximum threshold criteria of
production capacity, capital cost or area. &f they exceed the criteria, they
re#uire central clearance 0see item +/ of Schedule &1. !hus hydro-electric
power pro"ects above the capacity of -; M<, foundries above the cost of
$s. +; crores and irrigation pro"ects with a command area of more than,
+,;;; hectares are re#uired to get central clearance.
29
. Ibid, 4ara + at D.. =riginally, the distance from the forest was specified
as -; kilometers. 7owever, a revised notification on +F *anuary -..:,
reduced it to five kilometers and dropped the limitation on the distance
from )ational 4ark or sanctuary. S= F; 0'1 dated +F *anuary, -..:.
30
. Ibid, 4ara : at D.-C;.
31
. Ibid, Schedule &&&. !he ?ommittee consists of members representing
various disciplines such as eco-system management, air and water
pollution control, water resources management, land use planning, social
sciences rehabilitation, pro"ect appraisal, ecology and environmental
2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A. 141
notification could make necessary recommendations on the basis of
technical assessment of the documents and data furnished by the pro"ect
authorities and the data collected during visits to the site or factory and
by interaction with the affected population and environmental groups.
:+
(s
per draft notification the assessment is re#uired to be completed within a
period of three months from the date of receipt of documents from pro"ect
authorities.
() EIA N$!i%ia!i$n2 3446
!he 5raft )otification after passing through many debates and
facing several doubts and fears ultimately became a full-fledged
)otification in -../.
::
Many significant ideas envisaged under the draft
notification were surprisingly absent from the 6inal )otification. &mportant
of them are the replacement of central and state agencies for impact
assessment by a single impact assessment agency, namely, the Ministry
of 'nvironment and 6orests 0M='61, transfer of certain pro"ects originally
re#uiring state clearance for ?entral ?learance
:/
leaving out certain
pro"ects which were originally meant for ?entral %overnment
:D
and
keeping certain pro"ects out of the purview of any environmental
clearance
:C
, inclusion of certain pro"ects in the category re#uiring site
clearance
:,
and non-applicability of the final notification to the pro"ect
having the investment of less than fifty crores.
:F
?ertain pro"ects
re#uiring preliminary site clearance from the ?entral %overnment are
retained as such in the final notification.
:.
!his )otification re#uires the
M='6 to consult the ?ommittee of 'xperts in order to prepare a set of
health. &t will also have sub"ect area specialists, )%= representatives or
persons concerned with environmental issues.
32
. Ibid, 4ara /0iii1 0c1 and schedule &&& at C;, C:, C/ wherein it has been
provided that the assessment will have to be completed within a period of
three months from the date of receipt of documents from pro"ect
authorities..
33
. S= C; 0'1 dated +, *anuary, -../.
34
. Ibid, Schedule &, which includes storage batteries, mining and highway
pro"ects, tarred roads in 7imalayas or forest areas, distilleries, raw skins,
pulp, paper and newsprint, dyes, and cement, foundries and electroplating.
35
. ?ertain items like railway, incineration plants for hazardous wastes and
chlorinated hydro-carbon, manufacture of pneumatic tyres, commercial
forestry and forest based industries, which were scheduled for ?entral
clearance were left out.
3
. Such as pro"ects or industries relating to coal washers, ceramic
products, calcium carbide carbon, black charcoal, chemicals, glass and
glass wares.
3!
. S= :DC 0'1 dated / May -../, See 0-../1 && ??3 -// at +;;.
'xploration of ma"or minerals, in areas over D;; hectares, was added later
to the category needing site clearance.
3"
. S= C; 0'1 dated +, *anuary -../ 4ara :0b1.
39
. Ibid, 4ara - 0&&1.
-/+ !7' 2()($(S 3(< *=8$)(3 >9ol.:-
recommendations or technical assessment of documents and data.
/;
!hese experts are given right of entry into, and inspection of, the site of
the factory premises for this purpose. 8nder this notification the
concerned parties and environmental groups were made entitled to
demand for the summary of reports, recommendations and conditions
sub"ect to which environmental clearance was to be given.
!hrough these provisions of the notification a transformation of
discretionary model of '&( into a mandatory one was envisaged. 2ut a
later amendment
/-
to this notification seems to bely this expectation,
which makes it discretionary, rather than mandatory for &(( 0M='61 to
consult the ?ommittee of 'xperts and to allow the experts to visit sites
and interact with the affected population or environmental groups. !he
same amendment makes the access to reports, recommendations, and
conditions of clearance by the concerned parties and environmental
groups possible only when it is not against the public interest.
/+
!hus
through this amendment &(( could eliminate public participation on
various grounds thereby reducing the process of impact assessment
barely into a technical assessment of the pro"ect in #uestion.
/:
(*) Publi )ea&ing un*e& EIA N$!i%ia!i$n
$ealising the importance of the re#uirement of public
participation hearing for '&(, the 'nvironment )otification of -../ was
further amended in -.., adding a new dimension to the '&( process in
&ndia. 2efore this amendment the State 4ollution ?ontrol 2oards had
nothing to do with '&( process except having discretion to make such
in#uiry as it deemed fit in respect of the application for consent. !his
amendment on the one hand makes the public hearing mandatory
involving the S4?2s
//
in '&( process and confers, on the State
%overnments, power to give environmental clearance in certain
categories of thermal power plants on the other.
/D
!hus, this )otification, while intending to make the public hearing
mandatory for '&(, specifically provides that the findings of the &mpact
(ssessment (uthority should be based, inter,alia, on the details of public
in#uiry held in accordance with the prescribed procedure.
/C
8nder the
procedure prescribed for this purpose, the pro"ect authority is re#uired to
40
. Ibid, 4ara + &&& 0c1.
41
. S= :DC 0'1 dated / May -../ 0-../1 &&& ??3 -// at +;;.
42
. S=:-F 0'1 dated -; (pril -..,, %azette of &ndia, 4art &&, Sec 0ii1 -; (pril
-..,.
43
. Ibid.
44
. *upra )ote /+.
45
. S=:-. 0'1 dated -; may -..,. %azette of &ndia 4art &&. Section : 0ii1
dated -; May -..,. 7owever, such pro"ects if located near a reserved
forest, ecologically sensitive areas or inter -state boundary, central
clearance is re#uired.
2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A. 143
submit to the concerned 2oard twenty sets of executive summary of the
pro"ect along with such other information or documents as the 2oard
thinks necessary for the disposal of the proposed pro"ect. !he 2oard, in
turn, is re#uired to give notice of public hearing in two news papers of
wide circulation, mentioning therein the date, time and place of hearing,
and inviting suggestions, views, comments and ob"ections from the
affected public and environmental groups within thirty days from the date
of publication of such notice.
/,
( penal consisting of representatives from
the State 2oard, the State %overnment and local authorities, and senior
citizens not exceeding three in number, will hear the views and ob"ections
of the public.
/F
!he persons who can make oral or written ob"ections or
comments includes those who are likely to be affected by environmental
clearance or who have control over the pro"ect for which environmental
clearance is applied for or association of persons likely to be affected by
the pro"ect or associations functioning in the field of environment or any
local authority within whose limits the pro"ect is proposed to be located.
/.
!he above-mentioned set of documents is also kept in certain
specified offices including S4?2 or its regional offices, collectorate,
5istrict &ndustry =ffice and State 5epartment dealing with environment.
4ersons desirous of giving their views or filing ob"ections are given a right
to have access to such documents. !he impact assessment authority
would finalize the '&( only after perusing the details of this public
hearing.
D;
!he assessment, including public hearing, whenever necessary,
is re#uired to be completed within a period of ninety days from the date of
the receipt of the re#uisite documents and data from the pro"ect
authorities and assessment authorities are re#uired to convey their
decision to the concerned persons within thirty days thereafter. !he
environmental clearance, if granted shall be valid for a period of five
years from the commencement of the construction or operation.
D-
4
. S= :-F 0'1 dated -; (pril -..,, the Ba+ette of India, 4art &&, Sub-
Section 0ii1. (mendments to 4ara + of the Main )otification >S= C;0'1
dated +, *anuary -../N were made. Schedule &9 was added which lays
down the procedure for public in#uiry.
4!
. Ibid, Schedule &9.
4"
. Ibid. !he panel has representatives from the State 4ollution ?ontrol
2oard, the 5istrict ?ollect or his nominee, a representative of the State
%overnment dealing with the sub"ect, a representative of the 5epartment
of State %overnment dealing with environment, not more than three
representative of the local bodies and not more than three senior citizens
nominated by the 5istrict ?ollector.
49
. Ibid.
50
. Ibid.
51
. Ibid. 4ara + 0iii1 0c1.
-// !7' 2()($(S 3(< *=8$)(3 >9ol.:-
&t is, however, significant to note that through this amendment,
re#uirement of public hearing has become mandatory for '&(, but such
re#uirement is strictly applicable only in respects of those pro"ects which
are mentioned in Schedule &
D+
to the main )otification. &t means that the
other pro"ects falling outside the scheduled category may escape this
mandatory re#uirement even if they have every potential to cause
environmental damage.
&n (pril -..,, the 'nvironment Ministry took first step towards de-
centralizing the '&( regulatory machinery by shifting the responsibility for
environmental site clearance in respect of thermal power pro"ect to the
states. !his notification describes the categories of thermal power plants
falling within the state governments purview
D:
and largely replicates the
procedure provided under the principle notification of -../.
D/
!his )otification contemplates deemed clearances as it clearly
lays down that if no comment from the &mpact (ssessment (gency is
received within the stipulated period of time, the pro"ect would be
deemed to have been approved as proposed by the pro"ect authorities.
DD
!his inaction on the part of '&( agencies cannot be "ustified on any
ground whatsoever as it goes against the very spirit of environment
protection laws by permitting through inaction a pro"ect to work without
going through the process of '&(, which may not be environmentally
benign.
2esides above merits and demerits of '&(, sometimes
inade#uacies uncertainties of science and technology necessary for
proper '&( and the lack of professional competence interest on the part
of the performers of the '&( to analyse the data and research results
involved therein, may often lead to unexpected undesirable
conse#uences. 'ven an ideal mandatory model of '&( with such
ade#uacies and competence may fail to achieve its ob"ective if the same
is not accurate, fair, and unbiased. !here have been cases in &ndia where
'&( $eports have been found anomalous 0Gameng 7ydro 'lectric 4ro"ect
in (runachal 4ro"ect1, forged, and plagiarized 05andeli Mini 7ydel 4ro"ect
in 8ttara Gannada 5istrict of Garnataka1 leading to environmentally
malign decisions by concerned authorities. '&( consultants and academic
institutions undertaking '&( are often sub"ected to immense pressure to
give pro-pro"ect assessment reports, as pro"ect proponents themselves
fund the assessments. Sometimes, public hearing which is an important
and integral component of '&(, brings positive results 02arge Mounted
4ower 4ro"ect on (ghanashini 'stuary1 and sometime it badly fails 0!he
Galpakkan 4ro"ect1
DC
!hus, techno-scientific uncertainties, lack of
52
. See (ppendix ' for Schedule & to the )otification .
53
. Schedule & of '&( )otification
54
. Ibid, Schedule &&.
DD
See 4ara + 0v1 of the )otification of -../.
2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A. 145
re#uisite competence to perform '&( and manipulated data etc. may
defeat the very ob"ective of '&( )otification.
V. 7UDICIA, RESPONSE
!he "udiciary of &ndia has thrown sufficient light on various
provisions of the '&(. Some of the important "udicial pronouncements
having bearing on the '&( are given below@
&n 2entre for *ocial Custice = 3nion of India D Ethers
-7
, *ustice
M.S. Shah of the %u"arat 7igh ?ourt dealt in detail with the 'nvironment
&mpact (ssessment )otification of -../ as amended in -.., and gave
certain directions to the state of %u"arat about the manner in which a
meaningful public hearing should be conducted before granting
environmental clearance certificate to any industry, operation or process.
&n the instant case the petitioners challenged the environmental
clearance given by the State %overnment to the !hermal 4ower 4ro"ect
or %u"arat 'lectricity 2oard, on the ground that the public hearing
proceedings were ab initio void. !he 7igh ?ourt in the facts and
circumstances issued the following directions to the respondent
authorities about the manner in which the public hearings should be
conducted and public hearings should be made effective and meaningful
so as to achieve the ob"ective of the )otification.
0i1 !he venue of public hearing as prescribed in the ?entral %overnment
)otification dated -;-/--.., shall be as near as possible to the site of
the proposed pro"ect or to the affected village and in any case the venue
of hearing shall ordinarily not be further away from the head#uarters of
the taluka in which the proposed pro"ect is coming up or of the taluka
which includes most of the affected villages.
0ii1 !he %u"arat 4ollution ?ontrol 2oard 02oard1 shall cause the notice of
public hearing to be published in at least two newspapers widely
circulated in the region around the pro"ect. =ne of which shall be in the
vernacular language of the locality concerned. !his would mean that the
%4?2 is a liberty to publish the notice even in more than two
newspapers. Moreover, a newspaper widely circulated in the region
around the pro"ect does not necessarily mean the newspaper, which is
being published from the region around the pro"ect. (ll that it means is
that the newspaper is widely circulated in the region around the pro"ect,
even if the newspaper is published from outside the region. 6or the
purpose of finding out the figures of circulation, the 2oard may of course
treat the taluka in which the pro"ect is coming up or the taluka in which
5
. See Ganchi Gohli and Man"u Menon, I'nvironmental &mpacts, The
Findu *urvey of the Environment, +;;+ p. F,-.;.
5!
. (&$ +;;- %u". ,-.
-/C !7' 2()($(S 3(< *=8$)(3 >9ol.:-
the affected villages fall as a region around the pro"ect, but it is the
circulation which matters and not be place of publication as already
stated above.
!he 2oard shall also send a copy of the public notice about the
pubic hearing to the %ram 4anchayat )agar 4anchayat Municipality of
each of the villages towns likely to be affected by the 4ro"ect with a
re#uest to bring it to the notice of the people likely to be affected by the
pro"ect.
0iii1 !he date of first public hearing in connection with any pro"ect
re#uiring environmental clearance certificate has to be after at least :;
days from the date of publication of the notice in the newspapers. !his
will be minimum period and it is open to the 2oard to fix the public
hearing after a longer period but in any case the %4?2 shall make sure
that the copies of the executive summary of the pro"ect furnished by the
unit to the 2oard are made available at all local places mentioned in the
notification at least :; days prior to the date of public hearing.
(s far as the 'nvironment &mpact (ssessment report submitted
by the unit to the 2oard along with the application for clearance certificate
is concerned, the summary of such 'nvironment &mpact (ssessment
report in the local language shall also be made available to the
concerned persons on demand and if further demanded, a copy of the
'nvironment &mpact (ssessment report shall also be made available by
the %4?2. &t will be open to the 2oard to charge reasonable amount for
supplying copies of such summary or copies of the report, but in any
case the re#uest shall be acceded to within one week from the date of
the demand.
!he 2oard shall bear in mind the following observation made by
the ?entral %overnment in its letter dated -:-,--..F -
E<e are often receiving re#uest from )on-%overnmental
=rganizations for providing them copies of proceedings
according environmental clearance to pro"ect. Jou are advised
to make copies of environmental clearance proceedings
available in your office on re#uest to )on-%overnment
=rganizationsE.
0iv1 (s far as the #uorum of the ?ommittee is concerned, for the
?ommittee to hold valid hearing, at least one half of the members of the
?ommittee shall have to remain present and at least the following
members of the ?ommittee shall also have to remain present for the
hearing to be considered as valid public hearing -
-. !he officer from the 2oard.
+. !he officer from the 5epartment of 'nvironment and
6orest of the State %overnment.
:. =ne of the three senior citizens nominated by the
?ollector.
2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A. 14!
0v1 !he minutes of the public hearing shall be furnished by the 2oard
on demand and on payment of reasonable charges. <hen any demand
for such minutes is made and the charges specified therefor are paid, the
minutes shall be supplied as expeditiously as possible and in any case
within one fortnight from the date on which the minutes are sent to the
'nvironment &mpact (gency or to the ?entral %overnment in the Ministry
of 'nvironment and 6orest.
7ere also the %4?2 shall bear in mind the observations made by
the ?entral %overnment in its letter dated -:.,.-..F mentioned above.
0vi1 (s far as the number of public hearings which may be held by
the ?ommittee per day is concerned, there cannot be any hard and fast
rule, but looking to the size of the pro"ect and considering the impact on
the environmental front, the ?ommittee shall consider whether the
number of public hearings is consistent with the ob"ect with which the
public hearing is to be held. !he ?ommittee shall also consider the
following observations made by the ?entral %overnment in its letter dated
-,.,.-..F for fixing the venue and number of public hearings for certain
pro"ects which re#uire environmental clearance -
>In respect of certain projects such as laying of pipelines on
Figh"ays and projects located in inaccessible regions,
clarification has been sought "hether the public hearing should
be conducted in one place or number of places etc. The matter
has been e&amined. It has been decided that venue and number
of public hearing to be conducted for a particular proposal may
be left to the discretion of *tate $ollution 2ontrol .oard.
*tate $ollution 2ontrol .oardsG $ollution 2ontrol 2ommittees
may take a decision on the venue and number of public hearings
for projects "hich require environmental clearance as per
provisions of EIA 9otification keeping in vie" the nature of the
project, its environmental ramification and feasibility of grouping
of people at nearest convenient locations.
0vii1 (s far as the 'nvironment ?learance ?ertificate is concerned, as
soon as such clearance is granted, the State %overnment or the ?entral
%overnment, as the case may be, shall cause publication of the gist of
such clearance certificate in the newspapers in which the notice for public
hearing was published by the %4?2 for the particular pro"ect in #uestion.
0viii1 &t is clarified that since the 2oards is the agency which is to fix the
venues and the date of hearing and also to cause publication of the
notices for public hearing as per the notification dated -;-/--..,, there is
nothing to prevent the %4?2 from charging the applicant with fees for
this exercise nor is there anything to prevent the ?entral %overnment
from charging any fees or expenses for granting the environment
clearance certificates. !hese observations are made in order to see that
for the purpose of giving wider publicity to the notice for public hearings,
the %4?2 does not feel handicapped in the matter of incurring expenses
for publication of such notices in newspapers with wider circulation which
-/F !7' 2()($(S 3(< *=8$)(3 >9ol.:-
would normally charge higher rates than the newspapers with less
circulation and also to make sure that if more than one public hearing are
re#uired to be held, the administrative expenses incurred for such
hearings are taken care of and also for supplying copies of documents
which may be demanded by the affected people or )on-%overnmental
=rganizations.
DF
!he "udiciary of &ndia, however, is of the view that "udicial
interference should be avoided where the government has taken well
considered decision by providing for all possible safeguards to set up any
pro"ect industry etc. &n .*E* !imited = 3nion of India
-A
the 2ombay
7igh ?ourt has dealt with three important #uestions@
-. <hether the 7igh ?ourt can interfere with the well considered
decision of the %overnment to grant permission for the
establishment of an industry company.
+. <hether the 7igh ?ourt can interfere with the direction of a
statutory 'nvironment 4rotection (uthority given in consultation
with other experts in that field.
:. <hether the industry company can ask for the waiver of a
condition attached to grant of environmental clearance on the
ground that its non-fulfillment would cause no harm to the
environment.
!hese #uestions arose out of the following facts@ 2ombay
Suburban 'lectric Supply 02.S.'.S.1 3imited, a company registered under
the &ndian ?ompanies (ct, -.-:, was having a !hermal 4ower Station at
5ahanu in the State of Maharshtra. 'nvironmental clearance to set up
this station was given by the Maharashtra State and ?entral
%overnments on +-.,.-.FF and +..:.-.F. respectively. !his clearance
was sub"ect to certain conditions. =ne of such condition was to install a
6lue %as 5esulphurisation 06%51 plant, a S=+ gas control e#uipment,
within a given period of time. !hereafter the %overnment of Maharashtra
by )otification dated +;.C.-..- declared 5ahanu !aluka, in the district of
!hane 0Maharashtra1 as an ecologically fragile area and imposed
restriction on the setting up of industries, which have detrimental effects
on the environment. 2y the previously mentioned )otification, industries
have been classified under three categories, viz., %reen, =range and
$ed, for the purpose of permitting restricting such industrial activities in
5ahanu !aluka on the basis of environmental and ecological
considerations.
&n the %reen category are industries that can be considered by
the Maharashtra %overnment agencies for approval or re"ection in
approved industrial areas without prior approval of the Ministry of
5"
. Ibid at FF-.; See (lso 9armada .achao Andolan v. 3nion of India (&$
+;;; S? :,D-.
59
. (&$ +;;- 2ombay -+F.
2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A. 149
'nvironment and 6orests, %overnment of &ndia, sub"ect to the conditions
laid down in the )otification being fulfilled. 'ven in respect of industries
included in the %reen ?ategory, only those industries that do not use coal
in their manufacturing processes are to be permitted. &n the =range
?ategory are industries that can be permitted with proper environmental
assessment and ade#uate pollution control measures in sites that have
been approved by the Ministry of 'nvironment and 6orests, %overnment
of &ndia. !he $ed ?ategory contains list of industries that cannot be
permitted in 5ahanu !aluka, and includes Eindustries based on the use of
coalcoke.
!he !hermal 4ower Station was using coal to generate power
and therefore, according to the classification of industries it should fall in
$ed category. !he grant of permission to 2S'S 3td. for establishing a
!hermal Station was challenged by 2ombay 'nvironmental (ction %roup
through a writ petition. !he 5ahanu !aluka 'nvironment 4rotection
(uthority 05!'4(1, an (uthority constituted under section :0:1 of
environment 04rotection1 (ct, -.FC, on -+th May -... directed 2S'S
3td. to start the installation of 6%5 plant for environmental safely and
protection and for the well being of the people of 5ahanu within six
months and to complete the work within a reasonable time.
!he 2S'S 3td. ?hallenged the decision of 5!'4( and applied to
the State %overnment for the waiver of the condition relating to the
installation of 6%5 plant by pleading that the !hermal 4ower Station is a
<orld 2ank 4ro"ect and this 2ank while granting financial aid, had made
an independent evaluation of the pro"ect for e#uipment re#uirement, and
on the basis of such evaluation, had concluded that considering the low
sulphur content in &ndian coal, the 4ower 4lant could function well within
the stringent ambient air #uality guidelines stipulated by the &ndian
%overnment without installation of a 6%5 system. 7owever, it appears
from the (ide-Memorie that provision was made for the installation of
6%5 4lant while preparing the pro"ect cost estimates.
&n the above mentioned application dated F.-+.-..;, reference
was made to the (ppraisal $eport of the pro"ect by the <orld 2ank and
&nternational 6inance ?orporation 0<ashington1, as also to the $eport of
the $anganathan ?ommittee. &t was submitted that from the analysis of
&2 valley coal it is seen that the sulphur content varies from ;.:DO to
;.CO only. Since a +,Dm. high stack was being provided for the station. &t
was formed by an elaborate study that the annual F hourly average
ground level concentration did not exceed :.-; micrograms with
+,Dm.high chimney. !he permissible ground level concentration of
sulphur dioxide was :;micrograms per cu.m. for sensitive areas and F;
micrograms per cu.m. for residential and mixed use areas. ?omparing
these values with the values obtained for the power station, it was argued
that the values obtained are far too insignificant and cannot be expected
to cause any harm to human population or vegetation, trees and orchards
in the area.
-D; !7' 2()($(S 3(< *=8$)(3 >9ol.:-
!he petitions filed by 2ombay 'nvironment (ction %roups and
2S'S 3td. were disposed of by the court as follows@
The "rit petition filed by the .ombay Environmental Action Broup
against the *tate of 1aharashtra came to be disposed of on @th
Hecember @AA?. In this case the 2ourt "as satisfied, after
carefully e&amining all the facts and circumstances, that the
authorities have not sho"n lack of a"areness and "ere not
oblivious to the needs of environment, to as to "arrant the
2ourtIs interference. There "as considerable, thorough
deliberation, consultation and application of mind by all
concerned authorities and e&perts, and the in,depth analysis, the
conditions imposed and the precautions taken inspired 2ourtIs
confidence. The decision of the authorities could not be said to
be arbitrary or capricious or one not in good faith or actuated by
improper motive or e&traneous considerations. This 2ourt,
therefore, dismissed the 'rit $etitions. The finding "as that it
"as not a case, "hich "arranted interference by this 2ourt.
<hile disposing of the writ petition of 2S'S 3td. ?hief *ustice
2.4. Singh of the 2ombay 7igh ?ourt said that all aspects of the matter
have been carefully considered by 5!'4(. !he matter was heard on
several days, and apart from the experts of 5!'4(, the experts of the
?ompany and the experts of 5!'<( - respondent )o. / and other
experts were also consulted, and there was full discussion amongst the
experts. (fter considering all aspects of the matter, the conclusion was
reached that the petitioners must install 6%5 4lant. 5!'4( also took
note of the fact that while granting pro"ect clearance, the State
%overnment, %overnment of &ndia, and MS4?2 had insisted upon the
installation of 6%5 4lant. )''$& $eport, as also assessment made by
the experts of 5!'4(, came to the conclusion that with a view to protect
the environment, particularly in an environmentally fragile area, it was
necessary that the 6%5 4lant be installed. !he matters considered by
5!'4( and the experts before it are highly technical matters, on which
this ?ourt cannot express its opinion. Since 5!'4( has taken the
decision after consideration of all aspects of the matter, interference by
this ?ourt in writ "urisdiction may not be "ustified. &n fact, the same was
the submission advanced by the petitioners when the grant of clearance
to them for installation of the plant was challenged before this ?ourt.
<hile dismissing the writ petition filed by the 2ombay 'nvironmental
(ction %roup, this ?ourt observed that the ?ourtMs "urisdiction under
(rticle ++C of the ?onstitution was not unlimited. &f the ?ourt found that
the concerned %overnment authorities, both at the ?entre and State
level, have applied their minds to the relevant facts and circumstances
and that there are no extraneous considerations weighing with the
authorities, then, in the absence of mala fides or ulterior motive, it was
not open to the ?ourt to revoke the executive andor administrative
decisions merely and only because another view of the matter may also
perhaps be a possible view.
2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A. 151
!he ?ourt further highlighted the futility of "udicial interference in
every case and observed @
#Environmental issues are relevant and deserve serious
considerations. .ut the needs of the environment require to be
balanced "ith the needs of the community at large and the
needs of a developing country. If one finds, as in this case, that
all possible environmental safeguards have been taken, the
check and control by "ay of judicial revie" should then come to
an end. Ence an elaborate and e&tensive e&ercise by all
concerned including the environmentalists, the *tate and the
2entral authorities and e&pert,bodies is undertaken and effected
and its end result is judicially considered and revie"ed, the
matter thereafter should in all fairness stand concluded. Endless
arguments, endless revie"s and endless litigation in a matter
such as this, can carry one to no end and may as "ell turn
counter productive. 'hile public interest litigation is a "elcome
development, there are nevertheless limits beyond "hich it may
as "ell cease to be in public interest any further.
!hus, the ?ourt dismissed the writ petition of 2S'S 3td. by
holding that the setting up of 6%5 plant is a preventive measure, and the
petitioners cannot insist that the setting up of the 6%5 4lant must be
insisted upon only after it is established that the emissions from the
!hermal 4ower 4lant have adversely affected environment in 5ahanu
region. &t is precisely with a view to prevent such an occurrence that the
aforesaid measure is insisted upon. <e find that all relevant aspects
have been considered by 5!'4(, which is an expert body, and in a case
of this nature, no interference by this ?ourt is "ustified. 'ven if there is a
difference of opinion between the experts, the view taken by 5!'4(
supporting one such view cannot be characterised as irrational or
perverse. &n any event, this ?ourt cannot be called upon to substitute its
views for those of an expert body.
)ot only the "udicial review of the well-considered decisions of
the government has been discouraged by &ndian "udiciary but also
negligible hardship to few persons or adverse effect on environment and
ecology has not been allowed to become a ground for refusing
environmental clearance to the pro"ects of great public utility. !he
2ombay 7igh ?ourt in Boa %oundation v. Jonkan 0ail"ay 2orporation
C;
has thrown sufficient light on this aspect in the following words@
AIn our judgement, the claim of the petitioners that the alignment
"ould have devastating and irreversible impact upon the kha+an
lands is "ithout any foundation, and even other"ise, the e&tent
of damage is e&tremely negligible and a public project of such a
magnitude "hich is undertaken for meeting the aspirations of the
people on the "est coast cannot be defeated on such
consideration. It is not open to frustrate the project of public
importance to safeguard the interest of fe" persons) The
0
. (&$ -..+ 2ombay /,-.
-D+ !7' 2()($(S 3(< *=8$)(3 >9ol.:-
2ourts are bound to take into consideration the comparative
hardship, "hich the people in the region "ill suffer by stalling the
project of great public utility) 9o development is possible
"ithout some adverse effect on the ecology and environment but
the projects of public utility cannot be abandoned and it is as "ell
as the necessity to maintain the environment.
!hus, the cases discussed above clearly indicate that the &ndia
*udiciary while favouring strict compliance enforcement of the
environmental laws, rules and notifications emphasizes on adopting a
balanced view, taking all relevant factors in to account, towards
environment and development and seems reluctant to intervene interfere
with well considered decisions of the executive administrative agencies
regarding developmental activities where the risk danger to the
environment and ecology is either negligible or certainly manageable
through best available science and technology. 2ut where as a
conse#uence of the establishment of an industry or a pro"ect the above
said risk danger is uncertain but non-negligible, there immediate
regulatory action to avoid the same is essential and it may be one of the
potent reasons also to refuse consent environmental clearance for
carrying out any developmental activity.
VI. CONC,UDIN8 REMAR0S
&t is evident that before the publication of the draft '&( notification
in -..+, &ndia was following the discretionary administrative model of
'&( as provided under the <ater and the (ir (cts. !his model known as
Mpermit systemM instead of providing for serious en#uiry in respect of
consent application and public hearing participation, unnecessarily
contains an undemocratic element of confidentiality and secrecy leaving
the authorities responsible for granting refusing consent clearance
unaware of many material facts essential for such decision and keeping
the public in dark of the conse#uence thereof. Moreover, the secrecy of
the consent permit system provided under the anti pollution (cts
deprives the public the potential victim of environmental hazards of its
right to know information which is an integral part of the participatory
democracy. '&(, which is a cheaper, safer, and precautionary instrument
of environmental management does not find any statutory recognition in
the scheme of these ma"or antipollution (cts which have been enacted
mainly for the purpose of maintaining or promoting the wholesomeness of
the environment, and preventing, controlling and abating environmental
pollution.
2y early -..;Ms it was realised by everyone concerned that grant
of consent environmental clearance to set up pro"ects without proper
environment impact assessment was a self-created danger, which could
throw the environmental management out of gear. !he 2hopal gas
tragedy, worst industrial disaster of its kind in the human history, was the
result of a discretionary and defective model of 'nvironment &mpact
(ssessment. $ecognizing the deficient and discretionary character of
2002] ENVIRONMENTAL MANAGEMENT THROUGH E.I.A. 153
environment impact assessment provided under the anti-pollution (cts,
and the urgent need of statutory re#uirement of '&(, the %overnment of
&ndia, came out with the 'nvironment &mpact (ssessment )otification of
-../ which makes the '&( mandatory and incorporates therein the
essential element of public hearing. !his )otification re#uires the strict
compliance of the procedure laid down therein. 7owever, this )otification
is narrow in scope and covers only such pro"ects as are listed in its
Schedule, which are thirty in number so far. &t is true that no scheduled
pro"ect can escape the mandatory re#uirement of '&( and public hearing,
but the fact remains that there are a large number of other ventures,
which though do not find place in the above mentioned Schedule yet
have the potential to damage or degrade the environment.
!he -../ )otification labels the '&( report confidential and
provides for making a copy of the same available merely to the experts
on their demand and keeps the public away from such right. =nly
executive summary of the '&( prepared by pro"ect authorities kept with
various offices mentioned in the '&( notification is made available to the
public, that too for reading

alone

which does not enable it to form mature
opinion about the conse#uences of the proposed pro"ect. &n
conse#uence, despite fair intentions of the pro"ect authorities to hold
Ipublic hearing, the public fails to present its case properly to full extent.
2esides these weaknesses, this notification also suffers from a very
serious defect of deemed clearance, an unconscionable concept which
works against the very spirit of environmental management.
&t is humbly submitted that to ensure protection of the
environment 0which includes the air, water and land and interrelationship
between and among air, water and land and human beings, other living
creatures, plants, micro-organisms and property1 and peoples right to
information, there is an urgent need to suitably amend the anti pollution
(cts and the '&( )otification so as to make the '&( mandatory covering
all those developmental pro"ects, which have the potential to harm the
environment. Similarly, to make the environmental legislations more
meaningful and effective, provisions providing for deemed consent
clearance and restriction on inspection by the public at large of the
consent register as contemplated under the anti-pollution (cts should be
dispensed with and copies of the '&( report as envisaged under the '&(
notification be made available to the public also. 4ublic should also be
empowered to prefer an appeal to a court or tribunal against the decision
of an environment protection agency for ensuring proper administration of
the environmental law designed to achieve environmental "ustice.
2riefly speaking, in order to realise the fundamental right to
healthy environment, the 'nvironment &mpact (ssessment, in strict sense
of the term, of almost all the development pro"ects having potential to
damage the environment should be made mandatory. Similarly, in order
to force the decision making agencies to work in a more "ust, reasonable
and fair manner for attaining the goal of environmental "ustice, the public
-D/ !7' 2()($(S 3(< *=8$)(3 >9ol.:-
should be empowered to render active and informed participation in the
decision making processes by conferring on it a statutory right of access
to the deliberations of the environmental protection agencies at all levels.
3ast but not the least, like western countries, the '&( should be made an
integral part of the environmental legal regime in &ndia and public
participation be made an essential feature of the decision making
process in environmental matters so that the potential dangers of the
proposed pro"ect may be eliminated minimized at source and the gap of
understanding, if any, between the pro"ect authorities and the general
public may be bridged to the maximum possible extent. !he concept of
deemed consent clearance should be replaced by deemed refusal. &n
conclusion, barring few ma"or weaknesses, which need to be removed
immediately, the '&( notification is a welcome step taken with fair intent
in the right direction. 2ut there still remains a wide gap between principle
and practice, which if not bridged at its earliest may frustrate the very
purpose of the )otification. !o bridge this gap a body of devoted and
professionally competent persons with functional independence and
financial soundness may be constituted by the %overnment of &ndia.