New Delhi: Industrial projects that have come up without mandatory green clearances may receive the government’s go-ahead provided developers compensate for the damage they may have caused to the environment by breaching the rules.

A draft notification to that effect, dated 10 May, has now been put online by the ministry of environment, forests and climate change (MoEFCC), which has sought public feedback on the proposal.

Predictably, the proposal has drawn the ire of green activists, who allege that it would unduly favour violators, encourage fait accompli and dilute the deterrent effect of environmental rules.

The notification reads, “In case the projects or activities requiring prior environmental clearance under Environment Impact Assessment (EIA) Notification, 2006 from the concerned regulatory authority are brought for environmental clearance after starting the construction work, or have undertaken expansion, modernization, and change in product mix without prior environmental clearance, these projects shall be treated as cases of violations and shall be appraised for grant of environmental clearance and the project proponent to compensate may implement the Environmental Supplemental Plan (ESP) to remediate the damage caused or likely to be caused, and take out the undue economic gain due to non-compliance and violation".

It adds that the environment ministry’s expert appraisal committee (EAC) or the state EAC will refer such cases to an expert group, which will assess the monetary gain a developer may have derived and the damage caused to the environment because of non-compliance.

“The expert group may prepare an ESP for restoration of the damage caused to the environment and for further improvement of the environment. The project proponent shall give the consent for implementation of the ESP under the monitoring of the expert group and satisfactory implementation of the ESP shall form one of the specific conditions of the environmental clearance," the draft notification added. According to MoEFCC, the intent is to create a mechanism that would make projects started without environmental clearances compliant with the rules rather than leaving them unregulated and unchecked.

It is not the first time that such a move is being tried by the ministry. In the second term of the United Progressive Alliance, the ministry had come out with a retrospective clearance procedure—an office order—which was recently rejected by the National Green Tribunal.

According to a ministry official who didn’t want to be identified, the number of projects that may have come up without clearances may be around 400. Mint couldn’t ascertain a precise number.

“There is no intention to encourage violations. Instead, we want to bring such projects that violate environmental laws under environmental regulations. It is in the interest of the country," M.K. Singh, a joint secretary in the ministry, said of the draft notification.

Singh added the notification doesn’t mean automatic environmental clearance to projects.

“The Environmental Supplemental Plan and action suggested by the expert group will be in addition to the complete process of environmental clearance as mandated under EIA Notification 2006," Singh added.

The government can proceed against violators after filing a first information report, but activists said the environment ministry had rarely taken punitive action against companies that start their projects without prior environment clearances.

According to the EIA notification, projects such as mines, dams, nuclear power plants, thermal power plants and others need to be appraised by EACs on the basis of their EIA reports before they get an environment clearance.

Although the draft notification has a clause that the process of ESP will “ensure that the project satisfies all of the procedures, and requirements of the EIA notification, 2006", it is not clear how this will happen, said Kanchi Kohli, legal research director at the Namati Environmental Justice Programme of the Centre for Policy Research, a Delhi-based think tank.

“If the construction activity has taken place in violation of the notification, does this imply that the entire process of screening, scoping, public consultation and appraisal can be done post facto? The outcomes of this process would be unduly favourable to the violator, encourage fait accompli and allow for the continuation of project activities unabated. Rather than being a deterrent, such a practice will encourage illegality," said Kohli.

“The draft notification in question goes against the logic of assessing impacts before undertaking environmentally damaging activities. It puts faith in a party which has already violated the law assuming that the same will not happen again if an ESP is prepared as per the proposed procedure. None of the court judgements mandate such a perverse solution to the problem of non-compliance," she said.

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