The Environment (Protection) Act, 1986

What it does

The Act is Act No. 29 of 1986. It is an umbrella statute: it confers wide powers on the Central Government to take measures to protect and improve the quality of the environment and to prevent and control pollution, and it leaves the specifics to rules, notifications and directions. It was enacted after the Bhopal gas disaster and to implement India's decisions at the United Nations Conference on the Human Environment held in Stockholm in 1972.

Because the power is general, much of the practical law sits in instruments made under it. These include the Environment (Protection) Rules, 1986, rules on hazardous waste, plastic waste and noise, the coastal regulation notifications, and the Environment Impact Assessment Notification of 14 September 2006. The last of these requires certain projects to obtain prior environmental clearance before they start, and sorts them into categories according to the authority that appraises them.

Who it binds

Any person who carries on an industry, operation or process, and anyone who handles hazardous substances. The Act gives the Central Government, and officers it authorises, power to issue directions, including a direction to close, prohibit or regulate an industry or to stop the supply of electricity or water. It also contains a provision on offences by companies under which the persons in charge of the company's business can be answerable.

The Act sits beside the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, which deal with those media through the pollution control boards. The 1986 Act fills the gaps and supplies the power to make standards across all media.

What has changed, and when

The Act has been amended since 1986, and the more frequent changes arrive through notifications under it. The Environment Impact Assessment Notification of 2006 replaced an earlier notification of 1994 and has itself been amended repeatedly. A project is assessed against the notification in force when it applies, and a clearance already granted carries the conditions attached to it.

What turns on it in practice

For the projects and land practice, the Act is where infrastructure planning meets compliance. A project that falls within the Impact Assessment Notification cannot begin construction or site preparation, apart from limited exceptions, until it has the prior environmental clearance. A clearance is granted on conditions, and a breach of a condition can lead to suspension or cancellation of the clearance and to action under the Act. For a public-private partnership or a land-intensive project, the timing of the clearance is often on the critical path with land acquisition and zoning.

Three questions recur. Whether the project is in a category that needs clearance, and which authority appraises it. Whether the clearance is valid for the project as built, since a change in capacity or layout can need a fresh approval. And whether the conditions are being complied with on the ground, since the regulator and the National Green Tribunal both look at compliance and not only at the grant.

The National Green Tribunal hears appeals from the orders and directions made under the Act, and it has its own jurisdiction in environmental disputes. The Tribunal is therefore the statutory appellate forum for a challenge to a clearance or a closure direction, and the choice of forum is the first decision in any dispute.