19 Dec Environmental Clearance & Buildings : A confusing mess of legislation

My position in the construction sector is very unique. I am an architect, who specialises in the field of Environment and thus offer a very unique service to this sector. My objective is to ensure that the Laws pertaining to Environment and the construction of buildings is followed and going beyond, I appeal to the construction sector to start integrating principles of Green Design and Green Buildings so that we as a sector move towards ‘sustainable development’.

In this capacity, the first and foremost of my tasks is to “clear” the hurdle of environmental compliance. Let me summarily put forth how we went about this compliance for any medium scaled (between 20000 to 150000 sq.m) building projects in Maharashtra.

1. Such building projects are required to submit project related information in particular Forms to the State Government, which in accordance with the directives issued by the Ministry of Environment, Forests & Climate Change (MOEF&CC) assesses and grants Environmental Clearance.
2. This happens at the SEAC (State Expert Appraisal Committee), which technically assesses the project and at SEIAA (State Environmental Impact Assessment Authority), which grants the Environmental Clearance based on the recommendation of the SEAC. This process, usually takes about 6-12 months, depending on the cases pending with the SEAC and other administrative constraints.
3. The process typically happens in Mumbai, which means that project consultant teams from across the State have to travel to Mumbai (typically 3-4 times) for Environmental Clearance (EC), expending considerable time and efforts for this.

So far so good. This process was being followed from 2006, when the EIA Notification dated 14 September was published and the construction sector was included under its purview.

It is important to note some of the critical issues with this process of granting EC.

Building and construction sector, by virtue of its inherent nature, is a highly speculative type of business. Building plans change according to the market conditions for demand & supply of housing. This sector is also extremely sensitive to minor and major changes in local building regulations, which require constant “revisions” to building plans.
Considering the provisions of the EIA Notification of 2006, it is with every plan revision that the EC needs to be amended. Typically, any medium scaled project will undergo 5-6 minimum revisions, so it entails that the process of EC amendment will have to done as many times during the course of 2-3 years till the project is complete.
We have also found that the SEAC technical assessment is a subjective process. As members of SEAC change, their approach of looking at development also varies marginally. For example, one SEAC did not consider Basements as critical environmental impact, whereas the preceding SEAC was averse to granting EC for projects with basements.
Such subjective variations, particularly for projects when undergoing ‘plan revisions’ were uncomfortable and unnecessary and thus, there was a general resistance to seek ‘Amendment to EC’, unless the project was a complete renewal.

Lack of coordination between the State government and the ULBs created a loophole for this and it further compounded some critical aspects. For example, the plan on which EC was granted by the State government underwent a complete change when the plan was put up for Sanctioning by the ULBs. This was primarily because, the ULBs merely looked at the one page EC granted and was not at all empowered nor had the capacity to assess of the conditions that wee laid down by the EC and to see whether they were being incorporated into the Building Plans.
Thus what emerged was two separate files (or rather tall towers of paperwork) – one for EC and the other for Building Sanctioning.
Because the basic facilities like Water Supply, Sanitation and Waste Collection are subjects managed by the ULBs, all projects painted a rosy picture and procured all the requisite NOCs from the concerned ULB departments showing to SEAC that all facilities are ample and available on ground for the project. The SEAC had no reason not to believe these NOCs but when projects came up on the ground, the realities were far from the information supplied for grant of EC.

The lawsuits that have emerged in the past 10 odd years show how this has seriously affected the homeowners and have complicated the judicial process. Homeowners realise that an EC has been granted to their project, but there is no sustainable water supply to the project. Even basic access road does not exist on site, but the State Government neither has had the time nor the mechanism to cross verify these claims on the ground. Such lawsuits have shown that a comprehensive coordination was essential between the State grant of EC and the Building Sanction process.

Considering these aspects, the move by the Central Government to ‘decentralise’ the process of grant of EC is in tune with the realities faced on the ground. At the local level there is a higher probability that Building plans and the availability of environmental services can be cross verified. Further, any amendments to Building plans will be promptly assessed via Environmental cells of the ULBs. Also, the current situation where information related to the same project is differently managed at the State government level and Local level will get consolidated. This will also mean better accountability and implementation under RERA.

Based on this, I think the Draft Notification of 26.4.2016 and the Final Notification dated 9.12.2016 were issued in close consultations by the MOEF&CC and MoUD. Accordingly, Maharashtra promptly issued its State Notification in June 2017, to operationalise the above Notifications and proceed with the grant of EC at the local level.

The above divesting of its powers by the MOEF&CC to the local ULBs was seen as ‘dilution’ of the original EIA Notification of 2006 and like in a healthy democracy, the matter was brought into the National Green Tribunal (NGT) for adjudication.

My personal opinion is that codifying the process of Subjective assessment by SEAC cannot be seen as dilution. If you see the Notification dated 9.12.16, the provisions merely codify the requirements that the SEAC and SEIAA was putting as conditions when recommending and granting ECs. If MOEF&CC had conducted a review of conditions given to Building & construction projects, they could have shown to NGT that only about 10 to 12 relevant conditions are normally put into these ECs. These were sought to be codified to make the process simpler and less subjective.

The NGT in its Order repeatedly observes that the MOEF&CC did not conduct any studies/research prior to coming out with the Notification dated 9.12.16 and is thus unable to show what is the purpose of this Notification apart from its apparent intent of ‘ease of doing business’. This is a very important learning for MOEF&CC and such studies and reviews of its own approval processes can go a long way in strengthening its well intentioned moves and procedural changes.

The NGT has now given its verdict via NGT Order dated 8.12.2017 which can be summarised as followed:

1. The basic legal complexities involved when formulating a new Notification giving due regard to the original EIA Notification and the Original Acts like the Environment Protection Act, Water Act and Air Act was not addressed adequately. This is where the MOEF&CC made its first mistake.

2. The NGT observes that the reason for this Notification is to reduce the compliance timelines in its overall effort for Affordable housing and the NGT praises this move by MOEF&CC. So in principle, the NGT is not against the Notification nor against the idea that powers can be divested to ULBs.
However, the removal of the requirement of getting Consent to Establish and Consent to Operate which primarily excludes the purview of the Air Act and the Water Act has been seen as significant dilution of powers granted by the EIA Notification of 2006. This has been severely criticised by the NGT.
3. NGT also questions the legal sustainability of the Environmental Cell of the ULBs and which legal provision will draw powers to this cell. This is a very valid observation. If the EC process is integrated with the Building Sanction process and a single Approval is to be granted, the NGT observes that the MOEF&CC will completely lose its power over the process. And this, is in principle, is illegal and therefore legally untenable.
4. The NGT also questions the conflict of interest apparent in the Environmental cells of the ULBs, as the focus of any ULB is to ‘promote’ building development. NGT notes that the Environmental cell will not be able to retain its inherent purpose of environmental protection in face of the pressure exerted by other ULB forces to grant building permissions in a time bound and speedy manner.

With this, I would like to point to 2-3 critical aspects that are now panning out with regards to the Building sector and grant of EC.

One, is that since the Notification dated 9.12.16, the State Governments stopped granting ECs to Building & construction projects. Till the Maharashtra State Government issued its Notification in June 2017, the Building permissions remained in a limbo. Since 7.7.17, the process of Integrated EC was initiated at the ULBs, particularly in BrihanMumbai Municipal Corporation, MMRDA, Pune Municipal Corporation, Pimpri-Chinchwad Municipal Corporation and Pune Metropolitan Regional Development Authority. This was followed by the setting up of Environmental Cells at MIDC, SRA etc.

Secondly, with the NGT Order, the entire effort of setting up Environmental cells and their functioning has probably gone waste. At the same time, the NGT Order does not objectively state that the Grant of EC should revert back to its original process. So the confusion as to whether the State government should immediately set up the SEAC and SEIAA mechanism to grant ECs is unclear. Also, the Order does not objectively state that the Environmental cells at ULBs should be dismantled.

Thirdly, the NGT Order directs the MOEF&CC to amend the Notification dated 9.12.16 to suit the legal requirements that are highlighted in the Order. Will the MOEF&CC be able to do this amendment fast enough so that building & construction projects are not held up, still remains to be seen.

What I foresee is this. The Building & construction sector is in for another delaying period till the MOEF&CC gets its amendment in tune with the directives of NGT. Further, I foresee the delay in State governments and ULBs responding to the new amendment. All in all, the Builders, the architects and all the allied consultants in this sector can go on a long holiday, and hope that 2018 will be a better year for constructing homes!