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The golden opportunity for the non-compliant industries

Mini

The office memorandum published in July, while laying down the terms and conditions of this SOP, has clarified since the Central Government has the statutory powers to take all necessary action for the protection of the environment, it will recover the cost of remediation from the industries, which have been in non-compliance and have also caused damage to the environment.

The golden opportunity for the non-compliant industries
Industries operating without environmental clearances have been a cause of concern for the regulators for years. While such industries include the polluting ones, it also includes those which are non-polluting but have been in violation as they have been operating without the necessary environmental clearances.
The violators have to be dealt with strictly and penalised for non-compliance. However, it is only fair to also provide them with an opportunity to correct their mistakes.
The Supreme Court of India through its various judgments has reiterated the need to ensure compliance and penalise the violators, while also providing them with a fair opportunity to ensure that they comply with the applicable laws.
The National Green Tribunal (NGT) held in May 2021 that a standard operating procedure (SOP) be laid down to deal with the cases of violations relating to environmental clearances.
In compliance with the NGT order, the Ministry of Environment, Forest and Climate Change came up with the SOP for the identification and handling of violation cases under the Environment Impact Assessment Notification of 2006.
The office memorandum dated July 2021 lays down the SOP, is in furtherance of various orders of the NGT and the Supreme Court in the past where it has been clearly held that the violation cases have to be dealt with appropriately by the authorities as per the polluter pays principle and the principle of proportionality.
The SOP is an attempt to implement the orders of the courts wherein it has been reiterated that while the action for violation has to be initiated separately, there is an equal need to deal with the proposals from such industries seeking environmental clearance purely based on the merit of such proposals.
All non-compliant industries need not necessarily be polluting and it is important to appreciate that they all play a crucial role in the country’s economic growth, employment generation etc.
Most importantly, the SOP clarifies that all such environmental clearances would be granted prospectively and therefore it allays the genuine concerns relating to ex-post-facto clearances, which have been expressed in the past as well when the Government had come up with similar proposals in 2017 and 2018.
The office memorandum published in July, while laying down the terms and conditions of this SOP, has clarified since the Central Government has the statutory powers to take all necessary action for the protection of the environment, it will recover the cost of remediation from the industries, which have been in non-compliance and have also caused damage to the environment.
While action would be initiated in all cases of violations, projects that are not eligible for being granted environmental clearance will be demolished. During the pendency of their applications for environmental clearance, the existing industries will only be allowed to operate to the extent they have already been permitted.
In case they have no clearances, they will have to shut operations till the environmental clearance is actually granted after following the due process laid down by the law.
This office memorandum issued by the Government is a welcome step. It may seem alarming for activists who have been opposing the provision of such windows to violators but it is important to appreciate that this initiative will help improve compliance while also ensuring that appropriate remediation measures are undertaken in cases where any damage has been caused to the environment.
The SOP seems to be well-structured with necessary penalties in place for dealing with the violation cases. This will only help improve the condition of India’s environment by weeding away those harming the environment. With the cases of environmental violations rising, this seemingly bitter pill will augur well for the health of India’s natural environment.
While in the past, the NGT has ordered the closure of non-compliant industries, this directive from the NGT to devise an SOP for seeking environmental clearances and the subsequent issuance of the same in the form of an office memorandum will only help improve environmental compliance.
That voluntary disclosures of non-compliance are being encouraged and incentivised, is a great step towards ensuring environmental compliance.
Since the action against violators also includes closure or demolition, apart from penalties and costs which are commensurate to the scale of the project, this step will go a long way in encouraging companies to comply and seek environmental clearances prior to commencement of operations.
With amendments to the law relating to environmental clearances in the pipeline since last year, the law is only set to evolve from where it is today without really being detrimental to the environment. This will be beneficial for industries without really being detrimental to the environment if implemented in letter and spirit.
—Nawneet Vibhaw, is a partner at Shardul Amarchand Mangaldas & Co. and focuses on the firm’s environmental advisory and environmental disputes practice.