NGT Quashes MoEF’s Office Memoranda on violating projects: Large number of irrigation projects of Maharashtra & Karnataka affected

Press Release                                                 08.07.2015

In a landmark judgement, the Hon. National Green Tribunal has quashed the Office Memoranda issued by the Union Ministry of Environment, Forests & Climate Change (MoEF for short) on the 12.12.2012 & 27.06.2013 for “Consideration of proposals for  TORs/Environment Clearance/ CRZ Clearance involving violation of the Environment (Protection) Act, 19861 Environment Impact Assessment (EIA) Notification, 2006 / Coastal Regulation Zone (CRZ) Notification, 2011”.

Starting work on projects without securing Environmental Clearance is a serious violation of the Environment Protection Act (1986) (EPA 1986), however, some projects across the country were indulging in violations and in some cases, the projects were even complete, when they applied for environmental clearance with the Ministry! But the Ministry used the above mentioned OM to clear such projects, rather than taking strong action as required under the Environment Protection Act (EPA) 1986.

This Office Memorandum of 12.12.12, which replaced a similar Office Memorandum of 16th November 2010, asked for violating parties to:

  1. Submit written commitment that such violations will not be repeated
  2. Directed the State Government to initiate action against violations

After doing this, the project was to be considered by MoEF & its Expert Appraisal Committee (EAC).

However, yesterdays’ judgment by the NGT, combining two petitions filed by Shri. Manoj Mishra of the Yamuna Jiye Abhiyan and Mr. Muthuraman, resident of Tirunelveli, has quashed the above mentioned OM, calling it ultra vires (beyond MoEF’s Legal Power and Authority).

This is indeed a welcome judgment by NGT, upholding the sanctity of Environment (Protection) Act 1986 and EIA Notification (2006).

The order specifically states: “We  hold  and  declare  the  Office  Memoranda  dated  12th December,  2012  and  27th June,  2013  as  ultra  vires  the provisions  of  the  Act  of  1986  and  the  Notification  of  2006. They  suffer  from  the  infirmity  of  lack  of  inherent jurisdiction  and  authority.   Resultantly, we quash both these Office Memoranda. Consequently,  the  above  Office  Memoranda  are  held  to  be  ineffective  and  we prohibit  the MoEF  and  the  SEIAA  in the entire country from giving effect to these  Office Memoranda in any manner, whatsoever.”

SANDRP had written to the MoEF and EAC in the past, considering clearance for such projects was in violation of the EPA 1986 and EIA (Environmental Impact Assessment) Notification of Sept 14, 2006 which did not have any provisions to “regularize” violations like this.

Several project proponents simply submitted Board Resolutions about not committing violations and MoEF accepted these projects for appraisal once these were submitted. In the recent past, no state government has penalized a project proponent as per the Environment Protection Act 1986 for starting work without Environmental Clearance. SANDRP pointed out this to the EAC of the MoEF for River Valley Projects, which considered such Dam projects for appraisal. But the EAC & MoEF continued with this kind of “regularization”.

SANDRP has sent a letter to the MoEF and CC to urgently cancel clearances granted to such projects and order Stop Work Notice to the proponents. (The letter, with a list of projects violating the EPA 1986, is annexed.)

In Maharashtra and Karnataka alone, 10 projects have been recommended various stages of clearances based on the OM of 12.12.12 and two projects of these have even been accorded Environmental Clearance. (See table in the letter attached)

We hope MoEF will immediately cancel the clearances given which were based on this quashed OM and seek NGT guidance for further steps for such projects. 

SANDRP

Submissions from SANDRP on projects violating EPA (1986):

Sonthi LIS, Karnataka: https://sandrp.wordpress.com/2014/03/12/tragedy-of-errors-environmental-governance-and-the-sonthi-lift-irrigation-scheme/

Krishna Marathwada, Maharashtra: https://sandrp.wordpress.com/2015/04/01/krishna-marathwada-project-a-costly-pipe-dream/

Alegaon and Ar Kacheri, Buldana: https://sandrp.wordpress.com/2013/04/26/eac-rejects-2-vidc-projects-from-buldhana-for-violations/

Rampant Violations from Maharashtra: https://sandrp.wordpress.com/2014/06/20/press-release21-06-14-rampant-environmental-violations-of-maharashtra-water-resource-department/

Media Report: http://www.dnaindia.com/mumbai/report-moef-spikes-two-projects-in-vidarbha-for-violations-1827876

http://sandrp.in/irrigation/ShirapurLIS_SANDRP_Sbmsn_to_EAC_Jan2013.pdf

Letter to MoEF and CC from SANDRP:

From: South Asia Network on Dams, Rivers & People (SANDRP), Pune 

08.07.2015

To,

1. Shri. Prakash Javadekar,

Minister of State (Independent Charge),

Ministry of Environment, Forests and Climate Change (MoEFCC)

Paryavaran Bhawan, New Delhi

pjavadekar@gmail.com

2. Shri. Ashok Lavasa

Secretary,

Ministry of Environment, Forests and Climate Change (MoEFCC)

Paryavaran Bhawan, New Delhi

secy-moef@nic.in

3. Chairperson and Members of the EAC (RVP and HP),

Ministry of Environment, Forests and Climate Change (MoEFCC)

Paryavaran Bhawan, New Delhi

Subject: Suspending EC Stage I and II granted to Projects which violated Environment Protection Act and EIA Notification 2006, by using Ministry’s OM dated 12.12.2012

Respected Minister, Secretary, Chairperson and Members of EAC,

We would like to draw your attention to the judgment by the Hon. NGT dated 07-07-2015. The judgment was delivered combining two petitions, one filed by Mr. Manoj Mishra of the Yamuna Jiye Abhiyan and the other by Mr. Muthuraman, resident of Tirunelveli.

Both matters pertained to the MoEF issuing Environmental Clearances to projects which violated the EIA Notification 2006 and Environment (Protection) Act, 1986 (EPA 1986) by starting work prior to securing Environmental Clearance. However, instead of taking action as per EPA 1986, the Ministry considered these projects by using Ministry’s Office Memorandum 12.12.2012 which has conditions, fulfilling which, the project can be considered for EC. The OM does not have any penal provisions.

SANDRP had pointed out multiple times that using any such OM was beyond the powers of MoEF & EAC.

In the judgement dated 07.07.15, Hon. NGT has effectively Quashed the OM dated 12.12.12 and 27.06.15 as being ultra vires.

NGT states:

“We  hold  and  declare  the  Office  Memoranda  dated  12th December,  2012  and  27th June,  2013  as  ultra  vires  the provisions  of  the  Act  of  1986  and  the  Notification  of  2006.

They  suffer  from  the  infirmity  of  lack  of  inherent jurisdiction  and  authority.   Resultantly, we quash  both these Office Memoranda.

Consequently,  the  above  Office  Memoranda  are  held  to  be  ineffective  and  we prohibit  the MoEF  and  the  SEIAA  in the entire country from giving effect to these  Office Memoranda in any manner, whatsoever.”

As SANDRP had pointed out to the Ministry & the EAC (River Valley Projects) several times in the past with respect to projects violating EPA 1986 and EIA Notification 2006, using any such OM overriding the Parent Law, was unjustified and tantamount to violating the Law and encouraging further violations. But MoEF did not even respond to these submissions.

We had written: “In fact, regularizing such complete violations of the Laws of the Land by issuing Office Memorandums, etc., only encourage more violations of Environment (Protection) Act 1986 and EIA Notification (2006). Any regularising and weak action directly demeans environmental governance of the country and the MoEF and EAC itself.”

We are glad that through this judgement, NGT has quashed these OMs.

As per the NGT, the Office Memoranda permits “what is prohibited to be done” and will not stand Legal Scrutiny. It is clear that any Environmental Clearance (Stage I or Stage II) granted using this OM stands to be quashed as it has no legal support.

In the recent past, MoEF and the EAC has recommended and/or issued several such clearances, and used these OMs dated 12.12.2012 despite SANDRP writing the EAC in many instances. (See table below)

We request the MoEF to immediately cancel all such clearances issued so far which used the above mentioned OMs in the appraisal process or condoned violation of EPA 1986/ EIA Notification 2006. The MoEF should immediately write to all developers who have been issued such clearances to Stop Work and that their clearances are cancelled and projects delisted. The MoEF should also inform all EACs that they cannot use these OMs from now on. The MoEF should consult the NGT on the next possible steps to be taken in case of these projects.

As the Hon. NGT order observes: “Section  15  of  the  (Environment Protection)  Act  of  1986 provides  penalty  for  contravention  of  the  provisions  of  the  Act  of 1986,  the  Rules,  orders  and  the  directions  passed  thereunder. Interestingly,  Section  15  of  the  Act  of  1986  makes  both  noncompliance and contravention of the provisions of these enactments punishable. In other words, every default or violation and even noncompliance of the provisions has been made punishable.” (Emphasis Added)

It is clear that this penal clause also applies to projects which are in various stages of the appraisal process and where the EAC has recommended action as per OM dated 12.12.2012.

In the table below we have listed the projects about which we (SANDRP) had pointed out the violations to MoEF & EAC and the EAC had acknowledged this in most cases. This is list of only those projects that we are aware of, there are likely to be more such projects.

List of projects where OM 12.12.2012 was used and/or violations of EPA (1986)/ EIA Notification (2006) was condoned by EAC (RVP & HP) and MoEF

No. Name of the Project State Stage of EC
1. Krishna Marathwada Lift Irrigation Project Mah EC Granted by MoEF and CC 24th June 2015; OM 12.12.12 used
2. Shirapur Lift Irrigation Scheme Mah Scoping Clearance recommended by 81st EAC Meeting of January 2015
3. Lower Tapi Lift Irrigation Scheme Mah Recommended for EC, 80th EAC Meeting, December 2014; OM 12.12.12 used
4. Ar Kacheri Irrigation Project Mah TOR Clearance: Action as per OM dated 12.12.12 recommended by EAC in 65th Meeting March 2013
5. Lower Dnyanganga II Irrigation Project Mah TOR Clearance: Action as per OM 12.12.12 recommended by EAC in 66th EAC Meeting May 2013
6. Alewadi Irrigation Project Mah TOR Clearance: Action as per OM dated 12.12.12 recommended by EAC in 65th Meeting March 2013
7. Sonthi Lift Irrigation Scheme Karnataka EAC recommended TORs (Scoping Clearance) to the project in 73rd EAC meeting, March 2014: OM 12.12.12 used
8. Shiggaon Lift Irrigation Scheme Karnataka Recommended EC by the EAC in 76th EAC meeting, August 2014OM 12.12.12 used to condone violations
9. Singtalur Lift Irrigation Scheme Karnataka Considered for TOR (Scoping Clearance) in 68th EAC meeting, Sept 2013 EAC recommended action using 12.12.12 OM
10. Upper Bhadra Lift Irrigation Scheme Karnataka Considered for TOR (Scoping Clearance) in 83rd EAC Meeting, April 2015.No action initiated despite violation of EIA Notification 2006

We urge the MoEF and CC to urgently take back all of the above clearances and any other clearances granted or recommended at any stages using OM dated 12.12.12 and immediately issue a Stop Work Notice to the proponents. We urge the MoEF to request NGT to provide directions for future of such projects.

We look forward to MoEF and CC’s response on the issues raised above.

Thanking you,

Yours sincerely,

Parineeta Dandekar

For SANDRP

——————–

FURTHER READINGS:
1. http://scroll.in/article/740252/ex-post-facto-prior-environmental-clearances-how-a-nonsensical-phrase-was-used-to-flout-the-law

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