Environmental safeguards for linear projects in NE

The draft notification issued by the central government seeking to exempt linear projects such as roads, highways, and pipeline projects from prior environmental clearance for extraction of ordinary earth below the threshold level of 20,000 cubic feet is problematic for the ecologically fragile northeast region. Due to the region being highly susceptible to landslides and riverbank erosion, rampant extraction of ordinary earth will have irreversible consequences. The draft notification issued by the Ministry of Environment, Forestry, and Climate Change includes the criteria and environmental safeguards to be followed by the project proponent of linear projects for which exemptions for extraction, sourcing, or borrowing of ordinary earth are applicable. A closer look at the proposed safeguards points towards gaps that need to be plugged to ensure unwarranted environmental consequences. The draft notification has been issued after the Supreme Court in March struck down a previous notification issued by the MoEFCC in 2020 that exempted extraction of earth from prior environmental clearance for these linear projects. The apex court termed the 2020 notification “unguided and arbitrary.” The notification was also challenged in the National Green Tribunal (NGT). The NGT held that excavation of earth and mining of sand minerals are hazardous activities having serious adverse impacts on the environment. In view of ‘Precautionary’ and ‘Sustainable Development’ principles, such activity cannot be left unregulated by statutory enforceable mechanisms. It also ruled that blanket exemptions are against ecologically sustainable development norms. The Expert Appraisal Committee (EAC) at the MoEFCC during deliberations on the NGT directive expressed the view that if such linear projects obtained environmental clearance-based Environmental Impact Assessment (EIA) studies incorporating such sourcing of construction materials or other activities, necessary safeguards are already in place and incorporated in the environmental clearance appraisal process. The EAC was also of the opinion that, if such sourcing of construction materials is not considered in the EIA or such a linear project does not attract provision of environmental clearance, then such individual project-specific activities shall be subjected to environmental regulations in the EIA notification of 2006 or environment safeguard-related directives issued by the State Government or the State Pollution Control Board. Based on the recommendation of the EAC, the MoEFCC notified a set of Standard Operating Procedures (SOP) for exemption road projects and pipeline laying projects from green nod for extraction, sourcing, or borrowing of earth. The SC, however, while striking down the 2020 notification, stated in its directive that the authority for issuing SOPs and safeguards was not specified, and the provision to enforce these SOPs and safeguards, as well as the quantum of earth that can be extracted, etc., had also not been specified. Regarding general safeguards for extraction of earth below the threshold limit of 20,000 cubic feet, the new draft notification stipulates that the contractors normally identify the borrow area locations in consultation with the individual owners in the case of private lands and the concerned department in the case of government lands after assessing the suitability of the material. Borrowing shall generally not be from cultivable land, and it shall be preferably from barren land, silted ponds, and other government lands. If the government revenue authorities so decide in the greater public interest to create ponds and water bodies, especially in a water-stressed or scarce area, then in such cases, the borrowed earth can be used by the user agencies of the highways sector for the purposes of embankments. The draft notification also states that borrowing is to be avoided in the following areas: irrigated agricultural lands. In case of necessity for borrowing from such lands, the topsoil shall be preserved in stockpiles; grazing lands; up to one kilometre from environmentally sensitive areas such as reserve forests, protected forests, sanctuary, national parks, conservation reserves, wetlands, etc.; unstable side-hills; waterbodies; streams and seepage areas; areas supporting rare plants and animal species. However, the notification only says that these areas are to be avoided, and it does not impose any prohibition on sourcing earth from these areas, due to which it will not be legally binding on the project proponents to strictly adhere to these advisory. Amending these provisions in the notification, especially in the context of the northeastern region, will be crucial to preventing an increase in landslide susceptibility in the northeastern region due to rampant earth cutting for the construction of roads, highways, and pipelines. Lessons must be learnt from increasing and aggravating events of landslides disrupting road and railway communication, particularly in hilly states of the region and hilly areas of Assam. Prescribing remedial action against any deviation by the project proponent from observance of safeguards stipulated in the notification may help achieve the objectives of balancing development and environmental protection. Easing the environment norms is aimed at fast-tracking linear projects, but adequate safeguards that are legally binding on project developers need to be put in place for sustainable development in the Northeast.