Office memos issued by MoEF violating Environment Clearance Notification, 2006, declared ultra vires

National Green Tribunal (NGT): While observing that Office Memorandums dated December 12, 2012 and June 27, 2013, issued by Ministry of Environment, Forest and Climate Change lack inherent jurisdiction and authority, NGT declared the two memorandums, as ultra vires of the provisions of the Environmental Protection Act, 1986 and Environment Impact Assessment (EIA) Notification, 2006 (Environment Clearance Notification, 2006) and quashed them. “The notification (Environment Clearance Notification, 2006) mandates the requirement of ‘prior environmental clearance’ without exception. But the entire mandate of prior environmental clearance (EC) has not only been diluted but completely rendered infructuous or ineffective by issuance of these impugned office memorandums. The office memorandums stated to be ‘guidelines’ are potently destructive of the 2006 notification,” observed NGT. The 2012 office memorandum empowers the ministry to verify the genuineness of any complaint of violation of Environment Clearance Regulations of 2006 through regional offices and then seek the explanation of the project proponent. The 2013 office memorandum vested power in the ministry to restrain any project proponent from carrying out any construction or operational activity in case of any violation of not obtaining the required clearance. Several projects across the country have been started without securing environmental clearance; some of them are even completed without environmental clearance. The Ministry had used the above mentioned OMs to clear these projects, instead of taking the recommended strong action under the Environment Protection Act, 1986. Seven private builders were also made party before Tribunal for raising unauthorised structures. While directing the builders to pay compensation of 5% of their project value for restoration of environment and ecology and other aspects, NGT imposed a penalty of Rs 76.192 crore on them. NGT also constituted an expert committee comprising member secretaries of SEIAA, Tamil Nadu, and State Pollution Control Board and three others to inspect and submit a report on all seven projects. Several major and minor projects operating without the mandatory environmental clearances will be affected by the order across the country. (S.P. Muthuraman v. Union of India, 2015 SCC OnLine NGT 169, decided on 7-7-2015)

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