New Delhi: The NGT has directed the Ministry of Environment and Forests (MoEF) to re-examine a notification exempting real estate projects with a built-up area measuring between 20,000 and 1,50,000 square metres from obtaining prior environment clearance, saying it suffers from legal infirmity.
The MoEF, in an amendment notification published on December 9, 2016, exempted buildings and construction projects from the process of environment impact assessment (EIA) and prior environmental clearance.
For smaller projects (less than 20,000 sq metres), it has a "self-declaration" clause, which will ensure issuance of permission from urban local bodies. For larger projects of more than 20,000 sq m in size, the green clearance and building permission will be given by urban local bodies simultaneously in an "integrated format".
Quashing the provision in the notification which relates to the exclusion of "consent to operate" and "consent to establish" under the Water Act and the Air Act, the National Green Tribunal (NGT) said the stipulation with regard to constitution and functioning of environmental cell, to monitor adherence to the conditions in environmental clearance, cannot be sustained and are liable to be set aside.
"We direct the MoEF to re-examine its notification dated December 9, 2016 and take appropriate steps to delete, amend and rectify the clauses of the notification in light of this judgement.
"As a result of the above, the bye-laws amended by the DDA (Delhi Development Authority) vide its notification dated March 22, 2016 can also not be given effect to, unless the notification dated December 9, 2016 is amended in terms of this judgement," the bench said.
The tribunal made it clear that the ministry would not implement the impugned notifications till the time it complied with these directions and notifies the amended provisions.
It said that the environment ministry should take care that the social cause of providing 'housing to the poor' does not get defeated by business, economic profitability with reference to 'ease of doing business', while protecting the environment.
The NGT said the notification has several deficiencies which go against the basic spirit of the Environment (Protection) Act, 1986 and the environmental impact assessment (EIA) notification.
It said the ministry has failed to produce any "study, literature, evaluation of the reason" for taking such a "retrograde" decision to go back to a pre-2004 situation where the failure of the local bodies was considered to be the primary reason for bringing building and constructions activity within the EIA framework.
"The proposal for exemption of environmental clearance for construction and building project with built-up area up to 1,50,000 sq mtrs is baseless as there is no study that indicates any improvement in environment quality with regard to all environmental facets/ availability of natural resources, following which there can be a consideration for relaxation of current norms.
"The said amendment notification is only a ploy to circumvent the provisions of environmental assessment under the EIA Notification, 2006 in the name of 'ease of doing responsible business' and there is no mechanism laid down under the amendment notification for evaluation, assessment or monitoring of the environment impact of the building and construction activity," the bench said.
The judgement came on a plea filed by NGO Society for Protection of Environment and Biodiversity and others claiming that amended bye-laws "seek to defeat and do away with the provisions of EIA notification 2006 relating to requirement of an environmental clearance by buildings and construction projects".
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