How to File Challange to Environmental Clearance Before NGT in India
A builder proposes to set up a new factory near a village pond. A large residential project plans tree cutting beside a colony. A mining project is approved, only to be learnt about by people living nearby when machines arrive on site.
That is how most environmental clearance disputes begin. They start not with a voluminous file full of legal paperwork. They start with dust, fear, noise, traffic congestion, water shortage, and a sense that nobody listened to the people who have to live with the consequences.
Filing a challange to environmental clearance before NGT is a legal process which is initiated when a person, resident’s welfare group, business entity, property owner, farmer’s union, environmental organization or concerned citizen believe that an environmental clearance should not have been granted. They believe that proper research was not done, environmental concerns were not heard, or ecological hazards were ignored.
An environmental clearance is commonly known as EC and it means permission granted after environmental appraisal for those projects which fall under the Environmental Impact Assessment (EIA) regulations. On the official environmental clearance portal managed by government authorities, you can find EIA Notification, 2006 and its later amendments on the Ministry of Environment, Forest and Climate Change’s website.
Advocate BK Singh works on environmental matters and NGT cases for clients who want legal advice to review whether they should move forward with litigation. In some cases, the first mistake is not acting early enough. The second mistake is rushing to file a weak petition based on outrage and emotions. Applications to NGT requires dates, proof of documents, project details, violation of clearance terms and legal grounds. Filed appeals need proper drafting too.
For clients located in Delhi NCR, Noida, Greater Noida, Ghaziabad, Gurugram, Faridabad, Meerut, Lucknow, Mumbai, Pune, Bengaluru, Chennai, Hyderabad, Kolkata, Ahmedabad, Jaipur, Chandigarh and many other urban cities that have seen high growth over last decades: EC cases typically involve residential projects, commercial units, manufacturing sites, road constructions, warehouses, real estate and housing townships, waste projects or facility sets up, hotels and hospitality constructions, or any infrastructure related work.
In this guide, we cover how to file a challenge to environmental clearance before NGT, useful documents, limitation concerns, common mistakes, and when to speak to a lawyer.
Why Challange Environmental Clearance In India In 2021
You challenge environmental clearance in India because once an EC order is passed and project activity begins, it becomes more difficult to file a dispute. People may have read about the project in newspaper one day and see construction happening on the next. By the time you realize what is happening around your residential plot, school or farmland, the project proponents may have already obtained mandatory permissions and started ground work.
Delhi NCR has addition pressure from builders, luxury apartments, road expansion projects, warehouses, industrial zones and commercial centers. Noida, Greater Noida, Ghaziabad and Gurugram also see mass tree cutting and construction activities. In Mumbai, Pune, Bengaluru, Chennai and Hyderabad – lake zones, construction along road margins, hill slopes, drains, wetlands and areas which need care see regular violations.
The National Green Tribunal was created under an Act of Parliament, titled The National Green Tribunal Act, 2010. India Code, which provides a free and open-source platform of all Indian laws, records the following long title for NGT: An Act to provide for the establishment of a National Green Tribunal for the effective and expeditious disposal of cases relating to environmental protection and conservation of forests and other natural resources….It then places the NGT under the Ministry of Environment, Forest and Climate Change.
The intent of that last line matters. The NGT is not a civil court meant to entertain every residential or environmental complaint. However, because environmental issues intersect with many laws outlined in Schedule I of the NGT Act, a strong EC challenge will pinpoint where the EC was legally flawed, procedurally inconsistent or technically and environmentally erroneous.
BK Singh advises clients early. Some cases are best initiated at the first sign of danger. Others are better left untouched. But filing a strong EC challenge too early can result in limitation being lost. Filing on time but without proving how the appellant is affected, what is incorrect about the clearance, and what relief is sought would still result in case getting dismissed.
CHALLENGING ENVIRONMENTAL CLEARANCE QUICK GUIDE
| Point | Meaning |
|---|---|
| Under which law? | NGT hears appeals with respect to grant or refusal of environmental clearance under Section 16 of the NGT Act. |
| Limitation | Appeals need to be filed within 30 days of the communication of the order. Extension of up to 60 more days can be claimed by submitting reasons for delay. |
| Delaying too long | If the statutory limit is overpassed, delay becomes an important ground to reject the appeal. |
| Which law applies? | NGT Act, 2010, Environment Protection Act, 1986, EIA Notification, 2006 and relevant environmental regulations. |
| What proves your case? | Documents which would be relevant are EC order copy, EIA submitted to MOEF&CC, public hearing transcript, project layout plan, photographs, Google maps screenshots (careful with these), pollution data if relevant and site visits. |
| Can I ask the court to stop work? | Temporary relief such asking the project to stop work until NGT orders may be sought. It is discretionary and would depend on the facts of each case. |
| Can a lawyer help? | Advocate BK Singh can help review if your case is maintainable before NGT, if limitation can be challenged, what are the legal grounds, what documents to attach, and how to file at NGT. |
Why Challange Environmental Clearance (EC) Before NGT?
An EC challenge before NGT essentially questions if the environmental clearance was granted lawfully. Did the project go through proper environmental appraisal? Were material facts considered? Were there enough safeguards? Was environmental impact studied closely?
Typical legal grounds can be: Environmental Impact Assessment study was incomplete or inaccurate. Important facts about the project were not disclosed. The project category was wrongly interpreted. There was no fair public consultation. Local objections were dismissed. There was no cumulative impact study done. The expert appraisal panel did not apply their mind. Project is violating EC conditions from day one. The EC was granted despite being in an ecologically sensitive area.
A resident might say, “The traffic levels will go up.” That in itself is not a strong legal ground. A stronger argument would focus on how this traffic increase would impact the roads’ carrying capacity, air pollution levels, capacity of access roads, pedestrian safety, noise pollution levels, whether this specific concern was put forward during EC process and if any of these problems were considered before EC was granted.
A farmer might say “There has been decrease in water level.” That issue becomes stronger when tied to how much groundwater the project proposed to extract, hydro-geological studies shared by the project proponent, permissions from water authorities if any, local water stress or water scarcity, estimated water requirement stated in project documents, if any safeguards are proposed by project proponent to minimize water usage etc.
Environmental lawyer Advocate BK Singh deals with EC cases on the basis of documents. Emotions and sentiments are valid. Children wake up to construction dust. Families fear forcible land acquisition. But when dealing with NGT and legal courts, one must move from complaining language to establishing proof with documents and presentations.
Relevant laws for Challanging Environmental Clearance
Under Section 16 of the National Green Tribunal Act, 2010. This is recorded on India Code as ‘Appeals to the Tribunal’. You can notice under clause (1) that orders relating to environmental clearance granted under the Environment Protection Act, 1986 are expressly mentioned.
The parent statutes would be Environment Protection Act, 1986 and the EIA Notification, 2006 along with amendments made over the years. In addition, specific conditions to the project would have environment related clauses. There can be other laws implicated based on the facts. If the project causes water pollution, air pollution, forest clearance, harm to biodiversity, solid waste issues or flooding due to construction activity, those specific legal angles come into play too.
Remember that NGT’s jurisdiction under Section 14 also includes Civil cases relating to substantial questions regarding environment (whether or not involving infringement of any legal rights) and Section 15 includes Relief and Compensation etc. The placement of these sections under NGT Act’s hierarchy is clearly mentioned on India Code.
Mistake to remember: An EC challenge is almost always filed as an appeal. Not every environmental problem against a project is best challenged by filing an appeal under Section 16. If you are alleging that an EC order was wrongly granted, Section 16 is your first port of call. But if the issue is that there is illegal activity happening even after project was granted EC, noise pollution, water dumping in drain, untreated discharge going into rivers or environmental damage has occurred due to negligence, a different application under NGT’s statutory jurisdiction must be explored.
On NGT’s official website, the Principal Place of Sitting is mentioned as New Delhi. There are also Subsidiary Benches at Bhopal, Pune, Kolkata and Chennai. For Delhi NCR and North India cases, EC matters involving Principal Bench may be mentioned in various cases. However, depending on where the project is located, subject matter and who has aggravated the grievance, territorial criteria must be reviewed every time.
For clients wanting to understand how Advocate BK Singh can help on larger NGT representation, please visit Environmental & NGT Matters on this website.
HOW TO CHALLENGE ENVIRONMENTAL CLEARANCE STEP BY STEP
Step-1
Get a copy of the environmental clearance order, identify the date of communication or upload, check limitation, read the EIA & appraisal documents.
Step-2
Prepare legal grounds and ensure arguments are backed by laws and ecological impact.
Step-3
File the appeal along with all supporting documents at NGT.
Step-4
If you will be harmed by continuing project work/activity, you can seek a directed to stop work until NGT decides the matter.
Step 1: Collecting Information is not about drafting. It is about knowing facts.
Simply put, if you don’t know these you will falter at the first step.
Name of project, project proponent name, who granted EC, where is the project located, when was EC granted, when was it uploaded or when was order communicated to someone, what is the project category, what conditions were imposed on project, what stage has the construction reached.
Step-2: Studying Documents becomes technical.
Read the EIA report, look at Form-1, minutes from when experts met and discussed project, look at the public hearing record if any, read the project’s environmental management plan, study consent orders if any were required, take note of the site map they submitted, spend time understanding what they said and what they didn’t say.
Lawyer Advocate BK Singh pays close attention on: Were conditions of EC specific or ambiguous? Were public objections overlooked? Was impacts near forest, trees on highway margins ignored? Did project size look like it was deliberately broken down to avoid regulations? Did the authority give reasons for granting EC?
Step-3: Drafting the appeal.
File if within limitation. Appeal documents to normally include: facts of the case, explanation on why you are filing late (if delay), legal points and grounds you intend to raise, how the environment will be impacted, how the EC was defective or appraisal was not done properly, support your arguments with documents, pray or ask the court to set aside EC, modify EC conditions and pray for relief such as interim protection to prevent damage until NGT orders.
Documents Required for EC Challange (Case Example)
Successful EC appeals are routed in documents. It is not just your word against theirs. Pictures help. However, NGT looks for credible documents which connect project to potential environmental hazards or procedural lapses.
Documents which helped one of our clients manage their EC challenge included:
- Copy of environmental clearance order
- EC-1 or EIA submitted to MoEF&CC
- Terms of Reference, if available
- Public hearing notices, objections received during public hearing and minutes of meeting
- Minutes of EAC/SEIAA or SEAC where project was discussed
- Project layout plan, map showing exact location
- Farmer land records, khasra numbers and details, local zone planning records or master plan extracts showing land use zone of plot
- Photographs of current site condition and date-stamped videos from site
- Google maps or Maps India screenshots where available. Note: These can be useful but argue against you if not carefully selected. Learn how to read maps.
- CPCB/SPCB notices, if any consent orders or previous inspection records
- Water bodies pollution level records, air quality data, noise pollution data if available, traffic violations, solid waste management issues if applicable
- RTI response from relevant government offices, if any official complaints were made to authorities and what was their reply.
- Documents showing how residents, farmers, landowners, livelihoods or ecosystems will be affected due to project.
LIMITATION FOR EC CHALLANGE
Limitation begins at the date of which the EC was either uploaded on the official portal or communicated to a person. Section 16 of the NGT Act gives 30 days to file an appeal from the date of communication. Another 60 days can be sought by explaining to the Tribunal why you filed the appeal so late.
People lose time because they think filling an RTI or emailing the local environmental officer would help. Complaints are made to pollution control board, gram panchayat, local municipal corporation, development authority or even to MoEF&CC. Only later is it realized that appeals to challenge EC have a deadline too.
As a precautionary measure, find out the limitation period. If EC was uploaded on someone’s dashboard for public viewing, your limitation would start from the date of upload. If it was sent or communicated to you, your limitation would start from date of communication. If you came to know much later about an EC which was never publicly disclosed, the argument for explaining limitation would need to be framed differently. Do not rely on “I came to know about the EC late, so you will hear my case.”
BK Singh explains limitation with 3 dates: EC was granted on date X, I came to know about this on date Y. Therefore my limitation to file the appeal expires on date Z. Only after these three dates are known, we discuss the possibility of challenging EC.
EC CHALLANGE Mistakes to Avoid
Some EC challenges are rejected before NGT sees the case. This is not because the matter does not deserve hearing, but because the petition fails at the first stage.
Mistakes which are commonly seen:
- Not filing soon enough after EC granted.
- Filing the case but not attaching a copy of EC order.
- Confusing an EC challenge with filing a pollution complaint.
- Making allegations without solid proofs.
- Not mentioning limitation and reasons for delay, if any.
- Not checking if project required EC at all.
- Not obtaining a copy of public hearing document and minutes from the EPA where project was discussed.
- Supplying screenshots as attachments without mentioning where it was captured and date.
- Asking NGT to do everything without explaining how the environment will be damaged.
- Using news papers articles as proof, like blog is doing now
Every projects has unique facts. Copying grounds from a similar matter will weaken your case. An EC challenge against a project in a wetland area would have different grounds than an EC dispute where the project falls in an Aravalli zone. Urban construction projects have different factors to rural projects. Industries have different impacts to hotel constructions. One size does not fit all.
BK Singh cautions clients not to over dramatize situations. You will come across strong cases where factories are allowed to be built in residential zones, commercial complexes are permitted to elevate height levels and hotels are granted EC without hearing locals. But you must trust that a well presented, factual appeal has more chance of success than an over exaggerated petition with baseless allegations.
What if Environmental Clearance Order is not challenged?
An environmental clearance, if not challenged in time, would mean construction work or project work begins. Others may get interested in purchasing land, starting a factory or building a warehouse. It becomes ecologically harder to prove injury when work has begun and third party rights are acquired. Legal challengers will also face issues convincing NGT that the matter needed instant attention, yet they sat on it for months.
Residents lose their green cover, farm lands, water bodies or face years of dust, noise pollution, blocked drainage lines, traffic peaks and waste thrown in open areas. Farmers can have their water channels blocked, crops affected, road expanded into farmlands or village common lands being reduced. Businesses start working on a project which can later be challenged by locals leaving them project delivery uncertainty and compliance risk.
Answers to Frequently Asked Questions About Environment Clearance Challenges
1. Can environmental clearance be challenged before NGT?
Yes. Environment clearance is challengeable before NGT under Section 16 of the NGT Act by any person aggrieved within the statutory limitation period. However, the grounds to challenge EC would have to be specific, documented and related to environment laws.
2. What is the limitation for challenging environmental clearance before NGT?
In general, appeals must be filed within 30 days from date of communication of the EC order by NGT. However, NGT may in “interest of justice” allow appeals after 30 days if sufficient cause for delay is demonstrated, though not exceeding 60 days in extension. This limitation period is strictly enforced and relying on delay beyond statutory limits is not advised.
3. Can residents challenge builder’ environmental clearance?
Yes, environmental clearance granted to a builder can be challenged by affected residents or an RWA before NGT if they can prove technical legal flaws, potential environmental impacts and issues like violation of terms of EC granted, procedural violations during grant of EC, failure to address objections raised etc. The case should be based on provable documents and not mere hassles caused by the builder.
4. Can Advocate BK Singh help file an appeal against environmental clearance?
Yes. Advocate BK Singh can help you challenge environment clearance. BK Singh can analyze the EC order along with other project related documents, limitation status of your case, record of the public hearing, environmental aspects etc. before drafting an appeal in NGT or suggesting an alternate legal remedy that suits your facts.
5. Is NGT the appropriate forum for all environment related complaints?
No, there are certain complaints against builders/industry that may have to be routed through a complaint with the pollution control board, municipal corporation/plain district authority, writ petition in High Court, civil suit or another forum. Advocates often first examine if your specific dispute against grant of environment clearance is coverable under NGT appellate jurisdiction.
6. Can NGT stop the project after environmental clearance has been challenged?
Whether or not NGT will allow interim relief such as temporary stay or restrictions on the project would depend on facts of the case, urgency of relief required, potential environmental harm, balance of convenience and legal merits of your arguments. Grant of stay is not guaranteed on EC challenge.
7. What documents should be gathered to challenge EC?
Documents which may be useful to challenge environment clearance include: The EC order itself, the EIA report, minutes of the appraisal meeting, copy of the public hearing conducted, project map, photographs of the project site and surroundings, complaints by local authorities or residents before granting EC, if any, data on local pollution levels and documentation related to impact of project on health, trees, natural resources etc. The documents required vary from case to case.
8. Can project proponent speak in defense of EC before NGT?
Yes, if EC is challenged, the project proponent has the right to speak and defend why the environmental clearance should not be canceled. The project applicant would typically show compliance with conditions, proper appraisal of project documents, valid environmental studies were conducted, public were heard etc. Failure of any of these can weaken the EC defense.
9. Does awareness of EC granted after limitation expires extend limitation?
No. The reason for delayed knowledge must be established along with documents and specific facts. Appeals are decided on technical points and NGT would carefully analyze if “sufficient cause” for delay is provided as per law.
10. Is conducting of public hearing mandatory in every case of EC?
No hearing is not mandatory in every case of EC. Projects are categorized under different categories under EIA Notification. Whether a public hearing is mandatory depends on the category of the project. However, if holding a public hearing was mandatory and it was conducted unfairly or not at all without legal basis, such an act can be challenged.
Final Thoughts
Challenging environment clearance is time-critical and you would require all relevant documents to file an appeal. If you are a resident affected by a project, don’t wait until tree cutting or construction begins. A builder or promoter should also not ignore early environment related objections received from villagers, town authorities, local residents etc. since inconsistent reply or weak EC file notes can become a ground to challenge EC at a later date.
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