High 'court' of appeals, 2004: no cases

In 8 years, the National Environment Appellate Authority (NEAA) has heard 15 cases challenging environmental clearance decisions by the Central government. A look at this authority reveals a body that is not only underutilized, but also underpromoted.

In January 1994, the Ministry of Environment and Forests brought into force the Environment Impact Assessment (EIA) Notification. With this, 29 categories (today increased to 32) of industries and projects would need to go through a specified process of seeking environmental clearance. Only after a grant of such a clearance by the MoEF, a project proponent could undertake any construction, in theory.

But what were to happen if a local community or an impacted group of citizens was not in agreement with the grant of clearance, and wanted to challenge it? There could be issues with a clearance on the grounds of an inadequate or incomplete impact assessment or mandatory public hearing not being conducted properly. These are not theoretical grounds, they exist in reality. Despite substantive and procedural violations, the Ministry of Environment has had a track record of continuously granting clearances. (See: An impacted assessment process.)

It was with this check and balance in mind that in 1997, the central government gazetted the National Environment Appellate Authority Act. The purpose specified in the Act is to “provide for the establishment of a National Environment Appellate Authority to hear appeals with respect to restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection) Act, 1986 and for matters connected therewith or incidental thereto.”

The NEAA Act also describes the various functions and powers and jurisdiction of the Authority. The Authority itself is based in Delhi. It is supposed to have three members, including a Chairperson, Vice Chairperson and a Member. The authority is only for challenging grant of environmental clearances. An applicant cannot challenge non-grant of clearance.

The Act specifies that an aggrieved person must challenge the grant of an environment clearance with 30 days of the grant decision. If a person is unable to fulfil this requirement, an outer period of upto 90 days is allowed. But to qualify for this exemption, the petitioner must be prove that there was sufficient reason for not being able to file the appeal within the 30 days time.

This important forum of redressal began along these broad terms. But today, it remains grossly underutilized. It has had only one member, Vice Chairman Vishwanath Anand. The Vice Chairman has been hearing proceedings. Some say it is because of the limited scope of the legislation and others attribute it to the lack of awareness about its existence.

But the fact is that over the past seven-eight years, there have been only 15 instances when the Authority has been asked to intervene. Five cases in all of 1998 came to down to two in 2003 and none in 2004. For a nation undergoing seeing plenty of infrastructural development since the 90s and many dubious environmental clearances, this number is low.

The small number of cases has not gone unnoticed. In September 2003, the Law Commission on India in its 186th Report on the Proposal to Constitute Environmental Courts notes, “the National Environmental Appellate Authority constituted under the National Environmental Appellate Authority Act, 1997, for the limited purpose of providing a forum to review the administrative decisions on Environment Impact Assessment, had very little work. It appears that since the year 2000, no Judicial Member has been appointed. So far as the National Environmental Tribunal Act, 1995 is concerned, the legislation has yet to be notified despite the expiry of eight years. Since it was enacted by Parliament, the Tribunal under the Act is yet to be constituted. Thus, these two Tribunals are non-functional and remain only on paper.”
(See: Law Commission reports)

This is a surprising state of affairs, given plenty of environmental activism in India. And out of the tiny number of challenges, not even half were by NGOs or citizens' groups. Some aggrieved companies have challenged the non-grant of environmental clearance by the Ministry of Environment and Forests at the NEAA, something that is not even within the NEAA's jurisdiction!

One reading of this is that citizen’s groups have not recognized the potential of such an authority. After all it is the only direct forum in existence to challenge environmental clearances. Neither the Supreme Court nor the High Courts have this specific a mandate and yet they see much more petitioning than the NEAA.

When NGOs have used the NEAA, the result has not been very encouraging. The last case filed before the Authority was on 14th November 2003 challenging the environmental clearance granted to the Teesta Low Dam Hydro Electric Project Stage III, North Bengal on 16th July 2003. Amongst other things, the application highlighted the dam's severe impact on both the environment and people’s livelihoods. It presented facts on several discrepancies in both the public hearing process as well as the content of the Environment Impact Assessment (EIA) Report.

There were points on how the EIA report actually ignored the report of the Geological Survey of India. The GSI had said that the impact assessment report ignored the downstream impacts of the projects. This and other substantive matters could have been debated and discussed during the hearings, but the case never reached that stage. With all these problems unresolved, the grant of the environmental clearance to the National Hydro Electric Power Corporation Limited (NHPC) was flawed and not based on complete assessment.

But the NEAA did not admit the petition on the grounds that there was a ‘one day’ delay in filing the application. The Vice Chairman of the NEAA took the view that the application was not admissible, arguing that the application was filed on the 90th day since the environmental clearance. It is true that petition should have been submitted earlier to avoid this situation, but in reality there are always issues hindering this.

In this case, firstly the petitioners did not know of the existence of the NEAA apriori. But even then, after an impacted group decides to file a petition, the facts have to be put in place; further coordination and finalizing the application takes some time. All of this is often being done voluntarily and this adds to time constraints.

Also, a local group does not get to know of the grant of a clearance in New Delhi immediately. The MoEF does update its website currently (there is a delay even now between clearance and update on the website), but this system itself is a very recent development. For a group sitting in Siliguri to first get information on a clearance, and then get in touch with a lawyer in Delhi and work on a petition takes both time and resources, and in the meantime, the ninety day period can lapse very quickly.

A different case fought in early 2000 saw an application was filed by the Beach Protection Society of India challenging the environmental clearance given to what has today become one of the most controversial port projects in India. The matter was heard, notices were issued to respondents and a site visit was also undertaken. Detailed judgment on this matter was issued in May that year. The NEAA stated that it found no infirmity with the environmental clearance procedure adopted. It asked the Beach Protection Council of Orissa to monitor compliance of conditions of clearance for the project.

The NEAA Act also has an inherent power imbalance. It allows central and state governments to challenge environmental clearance granted by either party. But, when it comes to citizens or affected populations, they can only approach the NEAA to challenge clearances granted by the central government. There is no scope for citizens to separately challenge state government clearances at the NEAA. For instance, states like Karnataka have a list of industries which would require clearance from the state government (Department of Environment and Ecology, for example), whether or not they are listed in the EIA notification. The central government can challenge such clearances, but not the citizens themselves!

In sum, the potential of a specialized redressal forum for environmental protection has been and continues to be underutilized. More effort is needed to expand the NEAA's scope and create much more awareness of the body’s existence. The authority itself needs to look at the substantiveness of protection issues before rejecting petitions on mere procedural grounds. Only then will this otherwise dormant institution shake things up.