Environment Impact Assessment Notification, 2006

What it does

The notification, issued on 14 September 2006 as S.O. 1533(E), requires a project or activity listed in its Schedule to obtain prior environmental clearance before any construction or preparation of the site, other than fencing and a few preliminary steps, and before any expansion or modernisation that falls within its terms. It was made under the Environment (Protection) Act, 1986 and the Environment (Protection) Rules, 1986. It replaced an earlier notification of 1994 on the same subject.

The process has stages. The project is screened to decide whether it needs clearance, and in which category. The scope of the assessment is then settled by reference to terms of reference. The proponent prepares an impact assessment report, a public consultation follows for the projects that require it, and an expert committee appraises the application and recommends. The regulatory authority then decides, on the basis of that recommendation.

Projects are sorted into Category A and Category B by the listing in the Schedule and by thresholds of size or capacity. Category A projects are appraised at the Centre by an expert appraisal committee and cleared by the Ministry of Environment, Forest and Climate Change. Category B projects are dealt with at the State level by a State Environment Impact Assessment Authority, with a further division of Category B in the notification into projects that need a full assessment and those that do not.

Who it binds

The proponent of a listed project, which may be a company, a public body or an individual. The authorities that appraise and decide are also bound by the notification's procedure and its time limits. It does not bind a project outside the Schedule or below the threshold, though other environmental laws, among them the laws on forest, wildlife, water and air, may still apply to it.

What has changed, and when

The notification has been amended many times since 2006, by amending notifications that change the entries in the Schedule, the thresholds, the categorisation, and the procedure. The page does not list them. Whether a given activity needs clearance, and in which category, has to be answered from the text as amended at the date of the application, and not from the text as first issued. A project begun under an earlier version may have been governed by the version in force when it applied.

What turns on it in practice

The projects and land practice area works with this instrument at the front of the project timeline. Clearance is a condition precedent: work begun on a listed project without it is a contravention of the notification, and the consequences are borne by the proponent. A lender or an investor will ask for the clearance, its conditions and its validity before a financial close.

Three questions recur. The first is classification, since whether a project is Category A or Category B decides the forum, the speed and the public scrutiny it meets, and the aggregation of related phases can change the answer. The second is the conditions attached to a clearance, which bind the project through its life and can be enforced against it, and whose breach can bring the clearance into question. The third is the challenge to a clearance. A project that has been cleared may be questioned before the National Green Tribunal, and a prudent transaction timeline allows for that possibility.

Because the notification is a delegated instrument under the Environment (Protection) Act, its construction is a matter of the courts' view of the parent statute. The advisory work on a project therefore reads the notification together with the conditions of clearance, the site approvals under other laws, and the public consultation record, and treats the clearance as one part of a set of environmental approvals and not as the whole of it.