Obtaining Environmental Clearance in India: A comprehensive overview

Environmental Clearance (EC) is a crucial regulatory requirement in India for projects or activities that have the potential to significantly impact the environment. The Environment Impact Assessment Notification, 2006 (EIA Notification), mandates that certain projects, such as mining, infrastructure, thermal power plants, etc., obtain EC before commencing operations. This approval process, which can be complex and time-consuming, is essential for ensuring environmentally sustainable development.

• Which projects or activities require prior Environmental Clearance?

  The Schedule for the EIA Notification provides a list of over 39 classes of projects and activities requiring prior EC. However, this requirement not only applies to new projects or activities listed in the Schedule, but also extends to:

  • Any expansion or modernisation of existing projects or activities listed in the Schedule that exceed the specified capacity limits for the respective sector.
  • Changes in the product mix of existing manufacturing units listed in the Schedule that go beyond the specified range.

  In terms of the environmental impact of proposed projects, projects are divided into two categories in the EIA Notification. EC for Category A projects is granted by the Ministry of Environment, Forest, and Climate Change (MoEF&CC) due to their scale and impact while Category B activities are granted EC by the respective State Environmental Impact Assessment Authority (SEIAA).

• What is the procedure for obtaining Environmental Clearance?

  An application for grant of EC must be made through the single-window Parivesh portal of the MoEF&CC. This process of obtaining EC involves four stages, as discussed below.

  • The first stage involves the determination of whether an Environment Impact Assessment Report (EIA Report) is required for the project. This exercise is undertaken by the State Level Expert Appraisal Community (SEAC) depending upon the nature and location of the project. This determination is required only for Category B projects. Category B projects are further categorised as B1, being those projects that require an EIA report, while those that do not are categorised as B2. All Category A projects require an EIA Report.

  • The second stage involves obtaining the Terms of Reference (ToR) for the project.

    • For Category A projects: The Expert Appraisal Committee (EAC) appraises the project and issues the ToR.
    • For Category B1 projects: SEAC appraises the project and issues the ToR.

    The ToR must be conveyed to the applicant within 60 days of submitting the application on the Parivesh portal. If the ToR is not issued within this timeframe, the ToR suggested by the applicant will be deemed as final.

    At this stage, the competent authority (EAC or SEAC) may also reject the project and deny EC within 60 days of the application submission, providing reasons for the rejection.

  • The third stage involves a public hearing or consultation process based on the EIA Report. This process involves the following components and steps.

    • Public hearing: The concerned State Pollution Control Board (SPCB) is responsible for conducting a public hearing at the project site or in its vicinity within 45 days.
    • Written responses: The public hearing process also includes the collection of written responses from stakeholders.
    • EIA Report amendments: Following the public hearing, the EIA Report may be amended to incorporate feedback and address concerns raised by the public.
    • Submission to the competent authority: The revised EIA Report is then submitted to the appropriate authority (EAC or SEAC) for further appraisal.

    During the last stage, the relevant authority appraises the project by thoroughly reviewing all documentation, including the revised EIA Report and public hearing proceedings. This appraisal process must be concluded within 60 days of submission of the final EIA Report.

    Basis the appraisal in the fourth stage, the competent authority will consider the project and convey its decision to grant or reject EC within 105 days of the receipt of the final EIA Report, or the complete application where the EIA Report is not required.

  In recent times, the EC application and processing have become more streamlined and smoother since the introduction of the single-window Parivesh portal. The portal allows project proponents to track their applications in real-time. However, the process may be subject to unexpected delays given the nature of the assessment that is being undertaken for the grant of an EC.

• Can Environmental Clearance be transferred?

  EC can be transferred to another legal entity during its validity period. The new entity (transferee) must be qualified to undertake the project or activity for which the EC was granted. The transfer must be approved by the relevant regulatory authority (MoEF&CC or SEIAA) and the original holder of the EC must provide written consent or no objection for the transfer. The transferred EC remains subject to the same terms and conditions as originally issued, including the initial validity period.

• Can the grant or refusal of an Environmental Clearance be challenged?

  An order granting or refusing EC may be challenged, in an appeal, before the National Green Tribunal (NGT) under Section 16 (h) of the National Green Tribunal Act, 2010. Such an appeal can be filed by any person in the interest of the environment and not just the applicant. The NGT, as the expert adjudicatory body for environment-related matters, has the power to hear and decide such appeals.

  Generally, grant of EC orders are challenged by local residents or environmental organisations raising procedural defects or environmental impact of the projects being developed. Similarly, rejection or deferment of grant of EC is challenged by applicants if the process followed for appreciation of their application was defective.

• Can Environmental Clearance be obtained retrospectively after a project has been completed?

  Retrospective EC or ex-post facto EC was briefly permitted by the MoEF&CC through a notification dated 14 July 2017. The notification allowed six months to project proponents who had commenced, continued or completed a project without obtaining EC under the EIA Notification, to obtain EC. Thereafter, through court directions, this timeline was briefly extended from 14 March 2018 to 13 April 2018. Therefore, currently ex-post facto EC cannot be obtained and project proponents must obtain EC before commencing operations.

  Separately, following the NGT’s directions in multiple proceedings, the MoEF&CC issued a Standard Operating Procedure (SOP) on 7 July 2021, to address cases where prior EC had not been obtained. This SOP, based on the ‘Polluter Pays Principle’ and the ‘Principle of Proportionality’, included penalties for such violations and procedures for projects that expanded their capacity without prior EC. Subsequently, an Office Memorandum was also issued on 28 January 2022 by the MoEF&CC for penalising projects that were being granted ex-post facto EC. Currently, both the SOP dated 7 July 2021, and the Office Memorandum of 28 January 2022 have been stayed by the Supreme Court of India.

• Can the construction of a project commence while the Environmental Clearance application is still under consideration?

  Project construction must commence only after the grant of EC. The EIA Notification clearly specifies that only the land may be secured beforehand. All other activities such as construction work, preparation of land by project management, etc., can only be done after securing EC.

• How do relevant authorities ensure compliance with the conditions of Environmental Clearance?

  ECs are usually granted with a set of terms and conditions, requiring strict compliance. However, this is only fruitful if the compliance is also effectively monitored. The MoEF&CC along with SPCBs act as nodal offices for monitoring these conditions. The monitoring mechanism is detailed below.

  • Regular compliance reports: Project proponents are required to submit six-monthly compliance reports to the relevant authorities. These reports detail the project’s adherence to the specific conditions outlined in the EC. The authorities assess these reports to keep the compliances in check.
  • On-site inspections: Regular inspections are conducted by the authorities to assess on-ground compliance with EC conditions.
  • Public grievances: Public grievances and complaints regarding non-compliance are investigated by the authorities.

  The Parivesh portal facilitates the submission of compliance reports and assists in tracking compliance data.

• Is Environmental Clearance the only environment-related approval required for a project?

  While obtaining an EC is critical in India for projects that may impact the environment, it is not the only approval related to the environment that a project needs to obtain. Based on the nature of operations, various other environmental approvals may also have to be sought under the Environment Protection Act, 1986, Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981, Hazardous and Other Wastes (Management and Transboundary Movement) Rules, 2016, Forest (Conservation) Act, 1980, Wild Life (Protection) Act, 1972, Coastal Zone Management Act, 1972, to name a few.

Recent judicial activism and legislative developments have consistently aimed to enhance the enforcement of the Environment Impact Assessment (EIA) regime, in response to the unprecedented environmental damage currently faced by the country. Authorities regularly issue updates through notifications, circulars and office memorandums, balancing stakeholder consultations alongside environmental impact. This ongoing process of simplifying and streamlining the EIA regime is slowly but certainly improving the enforcement of environmental laws in the country.

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