Environmental Clearance Process for Mining Projects in India

A summary of the legal framework, guidelines and case law on the grant of environmental clearance for different categories of mining projects

Introduction

Mining is one of the important economic activities in India, but it also poses significant environmental and social challenges. To ensure that mining projects are environmentally sound and sustainable, the Ministry of Environment, Forest and Climate Change (MoEF&CC) has issued the Environmental Impact Assessment (EIA) Notification, 2006, which lays down the procedure for obtaining environmental clearance (EC) for various types of projects or activities. The EIA Notification, 2006 classifies projects or activities into different categories based on their potential impact on the environment and the level of appraisal required. The categories are A, B1 and B2. The category A projects are those which have significant potential impact on the environment and require prior EC from the Central Government. The category B projects are those which have less potential impact on the environment and require prior EC from the State Government. The category B projects are further sub-divided into B1 and B2. The category B1 projects are those which require prior EC from the State Environment Impact Assessment Authority (SEIAA) based on EIA report and public consultation. The category B2 projects are those which require prior EC from the District Environment Impact Assessment Authority (DEIAA) based on Form 1M and pre-feasibility report. The category .B2 projects do not require EIA report and public consultation unless specified otherwise by MoEF&CC.

The category B2 projects mainly include mining of minor minerals such as marble, limestone, sand, etc. However, sand mining is a special case as it involves extraction of a natural resource that is vital for various sectors such as construction, agriculture, etc. Sand mining also has significant impact on the river ecology, hydrology, geomorphology, biodiversity and socio-economic aspects. Therefore, sand mining requires special attention and regulation by the Government.

In this article, we will summarize the legal framework, guidelines and case law on the grant of EC for different categories of mining projects. We will also discuss a separate heading for sand mining category and its specific requirements and challenges.

Legal Framework

The legal framework governing the grant of EC for different categories of mining projects consists of the following:

• The Environment (Protection) Act, 1986 : This is the umbrella legislation for environmental protection in India. It empowers the Central Government to take measures to protect and improve the quality of the environment and to prevent, control and abate environmental pollution. It also empowers the Central Government to constitute authorities such as SEIAA and DEIAA for granting EC for different categories of projects or activities.
• The EIA Notification, 2006 : This is a notification issued by MoEF&CC under section 3 of the Environment (Protection) Act, 1986. It specifies the procedure for obtaining EC for various types of projects or activities. It also defines the categories such as A, B1 and B2 based on the screening criteria for different types of projects or activities. The screening criteria include factors such as size, location, capacity, potential impact, etc. The screening criteria are used to determine whether a project or activity requires prior EC or not and if yes, then at what level (Central or State or District). It also prescribes the steps involved in obtaining EC such as submission of application, site visit, public consultation, appraisal, etc.
• The Office Memorandum dated 15.01.2016 : This is an office memorandum issued by MoEF&CC under section 3 of the Environment (Protection) Act, 1986. It delegates the power of granting ECs for B2 category projects to DEIAA with effect from 15.01.2016. It also prescribes the composition and functions of DEAC, which is a technical committee to assist DEIAA in appraising B2 category projects. It also specifies that all applications for EC for B2 category projects shall be submitted online through a dedicated portal.
• The guidelines issued by MoEF&CC : These are various circulars and office memoranda issued by MoEF&CC from time to time to clarify or supplement the EIA Notification, 2006 and the Office Memorandum dated 15.01.2016. These guidelines provide details on how to conduct public consultation, site inspection, cumulative impact assessment and appraisal of different categories of mining projects.

Case Law

The case law on the grant of EC for different categories of mining projects consists of various judgments and orders passed by the NGT, which is a statutory body established under the National Green Tribunal Act, 2010 to adjudicate matters relating to environmental protection and conservation of natural resources. Some of these are as follows:

• In Goa Foundation vs Union of India & Ors., the NGT suspended the ECs granted by the MoEF&CC to 72 iron ore mining projects in Goa for violating the EIA Notification, 2006 and the Forest (Conservation) Act, 1980. The NGT held that the MoEF&CC had granted the ECs without considering the cumulative impact of the mining activities on the environment and the people of Goa. The NGT also directed the MoEF&CC to constitute an expert committee to conduct a comprehensive EIA of the mining sector in Goa and to recommend measures for its sustainable development.
• In Common Cause vs Union of India & Ors., the NGT quashed the ECs granted by the SEIAA, Odisha to 34 coal mining projects in Angul-Talcher region of Odisha for violating the EIA Notification, 2006 and the Office Memorandum dated 22.03.2010 issued by MoEF&CC. The NGT held that the SEIAA had granted the ECs without conducting public consultation, site inspection, cumulative impact assessment and appraisal as per the Office Memorandum, which mandated these steps for coal mining projects in critically polluted areas. The NGT also directed the MoEF&CC to constitute an expert committee to assess the carrying capacity of the region and to recommend measures for its environmental restoration.
• In Rajesh Kumar & Ors. vs State Of Gujarat & Ors., the NGT quashed the ECs granted by the DEIAA to three mining projects in Banaskantha district of Gujarat for extraction of marble and limestone. The NGT held that the DEIAA had violated the EIA Notification, 2006 and the Office Memorandum dated 15.01.2016 by not constituting or consulting the DEAC and not conducting public consultation, site inspection, cumulative impact assessment and appraisal before granting the ECs. The NGT also directed the MoEF&CC to take appropriate action against the DEIAA for its lapses and to ensure compliance with the law in future. The NGT further directed the SEIAA, Gujarat to consider the applications of the PPs afresh in accordance with the EIA Notification, 2006 and the Office Memorandum dated 15.01.2016 after conducting public consultation, site inspection, cumulative impact assessment and appraisal. 

Sand Mining Category

Sand mining is a special category of mining that involves extraction of sand from riverbeds, floodplains, coastal areas or any other sources of sand. Sand is a natural resource that is vital for various sectors such as construction, agriculture, etc. Sand mining also has significant impact on the river ecology, hydrology, geomorphology, biodiversity and socio-economic aspects. Therefore, sand mining requires special attention and regulation by the Government.

The legal framework, guidelines and case law on the grant of EC for sand mining category are as follows:

• The EIA Notification, 2006 : This notification specifies that sand mining projects with mining lease area less than 5 ha are exempted from EC2. However, as per the Office Memorandum dated 15.01.20161, sand mining projects with mine lease area less than 5 ha may be considered for grant of EC by the DEIAA if the cluster situation arises or if the project is located within 1 km of national parks, wildlife sanctuaries, critically polluted areas, eco-sensitive zones, inter-state boundaries and international boundaries1. Sand mining projects with mining lease area more than 5 ha but less than 25 ha are categorized as B2 and require prior EC from the DEIAA based on Form 1M and pre-feasibility report2. Sand mining projects with mining lease area more than 25 ha are categorized as B1 and require prior EC from the SEIAA based on EIA report and public consultation.
• The Enforcement & Monitoring Guidelines for Sand Mining : These are guidelines issued by MoEF&CC in January 2020 to provide a comprehensive framework for effective monitoring and enforcement of regulatory provisions related to sand mining. These guidelines cover various aspects such as identification of sand sources, preparation of district survey report, grant of mining lease or contract, replenishment study, transportation of sand, use of technology such as drones or GPS or RFID tags or barcodes or QR codes etc., role of various stakeholders such as state government or district administration or SPCB or police or revenue department etc., enforcement provisions such as penalties or seizure or cancellation etc., recommendation of high power committee etc.
• The Sustainable Sand Management Guidelines : These are guidelines issued by MoEF&CC in September 2016 to provide a general approach for the scientific and sustainable management of sand mining in India. These guidelines cover various aspects such as assessment of sand availability, demand and supply, environmental impact assessment, environmental management plan, best practices for sand extraction, monitoring and evaluation, role of various stakeholders such as state government or district administration or SPCB or gram panchayat or civil society etc., legal and institutional framework, etc. 

Conclusion

The grant of EC for different categories of mining projects in India is a complex and sensitive issue that requires careful consideration of various environmental and social aspects. The legal framework, guidelines and case law on this issue provide a comprehensive and clear procedure for obtaining EC for such projects. However, the implementation and enforcement of this procedure depends on the competence and diligence of the authorities such as SEIAA, DEIAA and DEAC. The recent judgments of the NGT have highlighted the lapses and violations committed by these authorities in granting ECs for different categories of mining projects without following the due process and without assessing the potential impacts of mining on the environment and the people. The NGT has also issued directions to the MoEF&CC and the SEIAA to take appropriate action against these authorities and to ensure compliance with the law in future. The NGT has also ordered the reconsideration of the applications for EC for different categories of mining projects after conducting public consultation, site visit, cumulative impact assessment and appraisal as per the EIA Notification, 2006 and the Office Memorandum dated 15.01.2016.

Sand mining is a special category of mining that requires special attention and regulation by the Government. Sand mining has significant impact on the river ecology, hydrology, geomorphology, biodiversity and socio-economic aspects. Therefore, sand mining requires prior EC from the DEIAA or the SEIAA depending on the size and location of the mining lease area. The MoEF&CC has issued various guidelines for effective monitoring and enforcement of regulatory provisions related to sand mining. These guidelines cover various aspects such as identification of sand sources, preparation of district survey report, grant of mining lease or contract, replenishment study, transportation of sand, use of technology, role of various stakeholders, enforcement provisions, recommendation of high power committee etc.

 

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