Supreme Court Issues Notice On A Petition Seeking Appointment Of A National Regulator To Oversee The Environmental Violations In The Country

The Supreme Court on Thursday issued notice to the Central Government in a plea seeking for the appointment of a National Environmental Regulator to oversee and give directions pertaining to Environmental Clearances for projects.

A Bench headed by Chief Justice of India SA Bobde presided over the matter, and Senior Advocate Colin Gonsalves, assisted by Advocate Anupradha Singh, appeared on behalf of the Petitioner.

The Public Interest Litigation (PIL), filed by AOR Satya Mitra, seeks for the constitution of an independent Regulatory Authority in compliance of the order passed by the Supreme Court on 6 July, 2011, wherein the Apex Court examined the need for autonomous, expert body for appraising projects on the basis of their potential impact on the environment.

It has been submitted that multiple petitions have been filed in Courts across the country wherein "issues of credibility and authenticity of EIA Reports have been called into question, the effectiveness of public consultation process has been assailed and where the appraising authorities have been found to have failed to adequately apply their minds before clearances have been granted".

In wake of the above, the July 2011 order stipulated for the Central Government to appoint a National Regulator under Section 3 of the Environment Protection Act, 1986.

"This direction was given on the basis of an observation that the prevailing mechanism for processing, appraisals and approval of environmental clearances proved to be deficient in many respects".

Apart from observing in the 2011 order that there existed no machinery for the implementation of the National Forest Policy, 1988, the Forest Conservation Act, 1980, and the Environment Protection Act, 1986, the Court further found it inappropriate that the person setting up the industry was tasked with doing the Environment Impact Assessment (EIA) Report.

Therefore, it was concluded by the Court that there was an urgent need for a Regulator who would be proactive in preventing and stopping environmental pollution, and therefore, ordered that a National Regulator would be appointed.

The instant plea submits that despite the explicit directions in the judgement, the Central Government has failed to set up a National Regulator as contemplated and the Central Government has justified it by stating that the directions were in the nature of suggestions and were not binding.

Further, the Central Government contends that the aforementioned statutes cast the duty of a Regulator upon the Central Government and these statutory duties cannot be delegated to any other authority. Additionally, under the EIA Notification, 2006, appropriate mechanism for appraising projects as well as monitoring and enforcing compliance of environmental conditions were already in place, and there was no need for a National Regulator.

However, in 2014, the Supreme Court reiterated its order and clarified that it had not merely suggested that a National Regulator should be appointed, but that it was a writ of mandamus.

The plea then goes on to emphasise on the fact that the present day EC processes are neither transparent, nor objective.

"ECs are issued in an arbitrary manner because of, amongst other reasons, lack of permanency of EAC members, lack of validated data, ineffective monitoring and enforcement of environmental clearance conditions, and, in some cases, conflict of interest in the case of some members".

The Draft EIA Notification has also been referred to in context of the lack of structural or procedural reforms which, as per the plea, substantially dilutes the safeguards in the 2006 notification. By ignoring the directions of the Apex Court, the plea submits that it is key to protect the health of the environment under Article 21 of the Constitution.

In light of the above, the plea prays for the setting up of a National Regulator under Section 3(3) of the Environment (Protection) Act, 1986, for appraising projects and enforcing environmental conditions as has been previously directed by the Supreme Court.