ENVIRONMENTAL REGULATIONS AND LEGAL FRAMEWORK IN

INDIA

1.1 ENVIRONMENT PROTECTION – FROM INDIAN CONSTITUTION

PRESPECTIVE

a) The State's responsibility with regard to environmental protection has

been laid down under Article 48-A of our Constitution, which reads as
follows:
"The State shall endeavour to protect and improve the
environment and to safeguard the forests and wildlife of the
country".

b) Environmental protection is a fundamental duty of every citizen of this

country under Article 51-A(g) of our Constitution which reads as
follows:
"It shall be the duty of every citizen of India to protect and
improve the natural environment including forests, lakes, rivers
and wildlife and to have compassion for living creatures."

c) Article 21 of the Constitution is a fundamental right which reads as

follows:
"No person shall be deprived of his life or personal liberty
except according to procedure established by law."

d) Article 48-A of the Constitution comes under Directive Principles of

State Policy and Article 51 A(g) of the Constitution comes under
Fundamental Duties.

e) The State's responsibility with regard to raising the level of nutrition

and the standard of living and to improve public health has been laid
down under Article 47 of the Constitution which reads as follows:

"The State shall regard the raising of the level of nutrition and
the standard of living of its people and the improvement of
public health as among its primary duties and, in particular, the
State shall endeavour to bring about prohibition of the
consumption except for medicinal purposes of intoxicating
drinks and of drugs which are injurious to health."

h) The 42nd amendment to the Constitution was brought about in the

year 1974 makes it the responsibility of the State Government to
protect and improve the environment and to safeguard the forests
and wildlife of the country. The latter, under Fundamental Duties,
makes it the fundamental duty of every citizen to protect and improve
the natural environment including forests, lakes, rivers and wildlife
and to have compassion for living creatures.

1.2 The subjects related to environment in the seventh schedule of the

Constitution:

Union List

Entries
52 Industries.
53 Regulation and development of oil fields and mineral oil
resources.
54 Regulation of mines and mineral development.
56 Regulation and development of inter-State rivers and river
valleys.
57 Fishing and fisheries beyond territorial waters.

State List

Entries
6 Public health and sanitation.
14 Agriculture, protection against pest and prevention of plant
diseases.
18 Land, colonisation, etc.
21 Fisheries.
23 Regulation of mines and mineral development subject to the
provisions of List-I.
24 Industries subject to the provisions of List-I.

Common or Concurrent List

Entries
17A Forests.
17B Protection of wild animals and birds.
20 Economic and social planning.
20A Population control and family planning

As conferred by Article 246(1), while the Union is supreme to make any

law over the subjects enumerated in List I, the States, under Article 246
(3), enjoy competence to legislate on the entries contained in List II, and
both the Union and the States under Article 246(2) have concurrent
jurisdiction on entries contained in List III. In the event of a clash, the
Union enjoys a primacy over States in that its legislation in the Union and
the Concurrent List prevails over State legislations. Also, the Parliament
has residuary powers to legislate on any matter not covered in the three
Lists (Art. 248).
1.3 MANDATORY REQUIREMENTS - ENVIRONMENT

THE ELECTRICITY ACT, 2003

This Act seeks to create a framework for the power sector development by
measures conducive to the industry. Electricity Act does not explicitly deal
with environmental implications of activities related to power transmission.
The applicable legal provisions under this Act are as follows: Section
68(1) - sanction from the Ministry of Power (MOP) is a mandatory
requirement for taking up any new project. The sanction authorizes SJVN
to plan and coordinate activities to commission new projects.

THE FOREST (CONSERVATION) ACT, 1980

This Act provides for the conservation of forests and regulating diversion
of forestlands for non-forestry purposes. When projects falls within
forestlands, prior clearance is required from relevant authorities under the
Forest (Conservation) Act, 1980. State governments cannot de-reserve
any forestland or authorise its use for any non-forest purposes without
approval from the Central government. The flow chart for forest clearance
as per this law is provided in Appendix -I.

The steps for forest clearance are briefly described below:

i) IDENTIFICATION OF FOREST AREA INVOLVED (LOCATION OF

PROJECT)
Preliminary location of project is done by using tools such as the
forest atlas and Survey of India maps. During route alignment, all
possible efforts are made to avoid the forest area (like national park
and sanctuaries) or to keep it to the barest minimum. Whenever it
becomes unavoidable due to the geography of terrain or heavy cost
involved in avoiding it, different alternative options are considered
to minimize the requirement of forest area.

For selection of optimum proposal, the following criteria are

taken into consideration:
a) any monument of cultural or historical importance is not
affected by the project;
b) the proposed alignment of the project line does not create
any threat to the survival of any community with special
reference to Tribal Community;
c) the proposed alignment of the project does not affect any
public utility services such as playgrounds, schools and
other establishments;
d) the alignment of the project does not pass through any
sanctuaries, National Park, Biosphere reserves or eco-
sensitive zones; and
e) the alignment of the project does not infringe with area of
natural resources.
To achieve this, selection of forest area involved is undertaken in
close consultation with representatives from the State forest
departments and the Department of Revenue. Minor alterations are
made to avoid environmentally sensitive areas and settlements at
execution stage.
Trees on such locations are felled but after stringing is complete
and natural regeneration is allowed to specific heights and
whenever required the tree plantation is taken.

ii) FORMULATION OF FOREST PROPOSAL

After finalization of forest area involved for project location SJVNL
submits details in prescribed proforma to the respective DFO/
Nodal Officer (Forest) of concerned State Government. DFO/ Nodal
Officer forwards the details to the concerned Divisional Forest
Officer (DFO) / Conservator of Forest for formulation of forest
proposal for processing of clearance under the Forest
(Conservation) Act, 1980. The DFO then surveys the relevant forest
area required for the construction of project under the possible
alternatives. Forest authorities conduct a cost-benefit analysis to
assess the loss of forest produce, loss to environment vis-à-vis
benefits of project . Compensatory Afforestation (CA) scheme is
prepared to compensate loss of vegetation and is the most
important and integral part of the proposal. For CA, the forest
authorities identify degraded forestland of twice the area of affected
land. SJVNL provides undertaking/ certificate to meet the cost of
compensatory afforestation and the Net Present Value of forestland
diverted. The NPV rate varies from Rs. 5.8 to Rs. 9.2 lakh per
hectare (as per MoEF Notification dt. 23.04.04) and is payable to
the “Compensatory Afforestation Fund Management and Planning
Authority” (CAMPA). If the forest is rich in wildlife, then the Chief
Wildlife Warden also gets a detailed assessment report prepared
including measures to protect the wildlife, which is submitted with
the proposal.

iii) APPROVAL OF PROPOSAL

The proposal is submitted to the state forest department and then
forwarded to the principal chief conservator of forests in the state
and finally to the state secretariat. The State Government
recommends the proposal for further processing and approval to a)
Concerned Regional Office of the MoEF if the area involved is 40
hectare or less b) MoEF, New Delhi if the area is more than 40
hectare. The approval process is illustrated in Appendix –II.
To facilitate speedy approval of forest proposal involving lesser
area, Ministry of Environment & Forests had established Regional
Offices in each region for processing and approving these
proposals . The MoEF approves the proposal in two stages. In
principle or first stage approval is accorded with certain conditions
depending upon the case. Second stage, or final approval is
provided after the compliance report of the conditions stipulated in
first Forest Proposal (FP) is received by MOEF,GOI from State
Forest Department .
SJVNL follows all relevant guidelines including the directions of the
Supreme Court in this regard from time to time.

ENVIRONMENTAL (PROTECTION) ACT, 1986

The Environment (Protection) Act, 1986 was introduced as an umbrella

legislation that provides a holistic framework for the protection and
improvement to the environment.

In terms of responsibilities, the Act and the associated Rules requires for
obtaining environmental clearances for specific types of new / expansion
projects (addressed under Environmental Impact Assessment Notification,
1994) and for submission of an environmental statement to the State
Pollution Control Board annually. Environmental clearance is not
applicable to hydro projects also.
SJVNL undertakes Environmental Impact Assessment for all projects as a
standard management procedure as laid down in The Environment
(Protection) Act, 1986 and also functions within permissible standards of
ambient air quality and noise levels as prescribed by national laws and
international regulations. The Environmental Clearance procedure is at
Appendix- III.
Other rules and regulations under the Environmental (Protection) Act,
1986 applicable to the operation of SJVNL are described below:

AIR (PREVENTION AND CONTROL OF POLLUTION) ACT 1981

The objective of this Act is to provide for the prevention, control and
abatement of air pollution, for the establishment, with a view to carrying
out the aforesaid purposes, of Boards, for conferring on and assigning to
such Boards powers and functions relating thereto and for matters
connected therewith.

Decisions were taken at the United Nations Conference on the Human

Environment held in Stockholm in June 1972, in which India participated,
to take appropriate steps for the preservation of the natural resources of
the earth which, among other things, includes the preservation of the
quality of air and control of air pollution.

Therefore it is considered necessary to implement the decisions foresaid

in so far as they relate to the preservation of the quality of air and control
of air pollution.

WATER (PREVENTION & CONTROL ) ACT 1974

The objectives of the Water (Prevention and Control of Pollution) Act are
to provide for the Prevention and Control of Water Pollution and the
maintenance or restoration of the wholesomeness of water for the
establishment, with a view to carrying out the purposes aforesaid, of
Boards for the prevention and control of water pollution, for conferring on
and assigning to such Boards powers and functions relating thereto and
for matters connected therewith.

WILDLIFE PROTECTION ACT, 1972

According to the Wildlife Protection Act, 1972 "wildlife" includes any

animal, bees, butterflies, crustacea, fish and moths; and aquatic or land
vegetation which forms part of any habitat. In accordance with Wildlife
(Protection) Amendment Act, 2002 “no alternation of boundaries / National
Park / Sanctuary shall be made by the State Govt. except on
recommendation of the National Board for Wildlife (NBWL)”.
Further, in terms of Supreme Court Order dated 13.11.2000 the State
Govts have to seek prior permission of Supreme Court before submitting
the proposal for diversion of forest land in National Park sanctuaries.

Whenever, any part of Wildlife Sanctuary / National Park is getting

affected by a hydro project the forest proposal in respect of such project is
entertained by MoEF, GOI only after permission of de-reservation / de-
notification of Wildlife Sanctuary /National Park has been accorded. After
recommendation of Standing Committee of NBWL proposal for de-
reservation/ de-notification is ratified by Hon’ble Supreme Court.

THE BIOLOGICAL DIVERSITY ACT, 2002

The Ministry of Environment and Forests has enacted the Biological
Diversity Act, 2002 under the United Nations Convention on Biological
Diversity signed at Rio de Janeiro on the 5th day of June, 1992 of which
India is also a party. This Act is to “provide for the conservation of
biological diversity, sustainable use of its components, and fair and
equitable sharing of the benefits arising out of the sued of biological
resources, knowledge and for matters connected therewith or incidental
thereto.” As per the provision of act certain areas, which are rich in
biodiversity and encompasses unique and representative ecosystems are
identified and designated as biosphere reserve to facilitate its
conservation. All restrictions applicable to protected areas like National
Park & Sanctuaries are also applicable to these reserves. SJVNL abides
by the provision of act wherever applicable and try avoiding these
biosphere reserves while finalising the project infrastructure locations.

HAZARDOUS WASTES (MANAGEMENT AND HANDLING)

AMENDMENT RULES, 2003
These Rules classify used mineral oil as hazardous waste under the
Hazardous Waste (Management & Handling) Rules, 2003 that requires
proper handling and disposal. Organisation will seek authorisation for
disposal of hazardous waste from concerned State Pollution Control
Boards (SPCB) as and when required.

OZONE DEPLETING SUBSTANCES (REGULATION AND CONTROL)

RULES, 2000
MoEF vide its notification dt. 17th July, 2000 under the section of 6, 8 and
25 of the Environment (Protection) Act, 1986 has notified rules for
regulation/ control of Ozone Depleting Substances ( ODS) under Montreal
Protocol. As per the notification certain control and regulation has been
imposed on manufacturing, import, export, and use of these compounds.
Organisations as per provisions of notification shall is phase out all
equipment, which uses these substances, and is aiming at CFC free
organisation in near future.

1.4 OTHER ENVIRONMENT – RELATED LAWS

The Shore Nuisance (Bombay and Kolaba) Act, 1853

This is the earliest Act on the statue book concerning control of water
pollution in India.

The Serais Act, 1867

The Act enjoined upon a keeper of Serai or an inn to keep a certain quality
of water fit for consumption by “persons and animals using it” to the
satisfaction of the District magistrate or his nominees. Failure for
maintaining the standard entailed a liability of rupees twenty.

The North India Canal and Drainage Act, 1873

Certain offences have been listed under the Act contained in Section 70.

Obstruction in Fairways Act, 1881

Section 8 of the Act empowered the Central Government to make Rules to

regulate or prohibit the throwing of rubbish in any fairway leading to a port
causing or likely to give rise to a bank or shoal.

Indian Easements Act, 1882

Illustrations (f), (h) and (j) of Section 7 of the Act deal with pollution of
waters.

The Indian Fisheries Act, 1897

The Indian Fisheries Act, 1897 contains seven sections. Section 5 of the
Act prohibits destruction of fish by poisoning waters.

Indian Ports Act, 1908

Water pollution by oil has been regulated by the Indian Ports Act, 1908.

The Indian Forest Act, 1927

Section 26(i) of the Act makes it punishable if any person, who, in

contravention of the rules made by the State Government, poisons water
of a forest area. The State Government has been empowered under
Section 32(f) to make rules relating to poisoning of water in forests.

The Damodar Valley Corporation Act, 1948

The Act overnment the Corporation to make regulations with the

previous sanction of the Central Government for preventing “pollution of
water”.

The Factories Act, 1948

Factories Act, 1948 is a social welfare legislation intend to secure health,

safety and welfare of the workers employed in factories. Hiowever,some of
the provisions of this Act are concerned with prevention of water pollution.

The Mines Act, 1952

Chapter V of the Act deals with provisions regarding health and Safety of
the employees. Section 19(i) Government upon arrangement for the
quality of water for drinking purposes.

The River Boards Act, 1956

The Act provides for the creation of River Boards for regulation and
development of interstate rivers and river valleys. One of the functions of
the Board is to advise to the Government concerned on “prevention of
pollution of the waters of the interstate rivers”.

The Merchant Shipping Act, 1958

The International Convention for the Prevention of Pollution of the Sea by

Oil, 1954 is the first treaty for the reduction of oil pollution of the sea. In
order to give effect to this Convention, the Merchant Shipping Act
regulates and controls the discharge of oil or oil mixture by an Indian
tanker or ship within any of the prohibited zones or by a foreign tanker or
other ship within the prohibited zone adjoining the territories of India.
Further, there is a prohibition for discharging any oil anywhere at sea from
an Indian ship.
1.5 LEGAL AND REGULATORY FRAMEWORK FOR HYDRO PROJECTS.

1.5.1 The principal Environmental Regulatory Agency in India is the Ministry of

Environment and Forests (MOEF). MOEF formulates environmental
policies and accords environmental clearance for the projects. The State
Pollution Control Board (SPCB) accords ‘No Objection Certificate’ (NOC)
and ‘Consent for Establishment and Operation’ for the projects.

1.5.2 The project features entail a Environmental Impact Assessment Study to

be conducted which is a pre-requisite for obtaining environmental
clearance from Ministry of Environment & Forests, Government of India..

1.5.3 Environmental Impact Assessment (EIA) is an important management

tool for ensuring optimal use of natural resources for sustainable
development, and was introduced in India initially for River Valley Projects
in 1978-79. The scope of the EIA has been enhanced to cover other
developmental sectors such as industries, mining schemes, energy, etc.
To facilitate project proponents in collection of environmental data and
formulation of environmental management plans, it is now mandatory
under the Environment (Protection) Act, 1986, for different categories of
developmental activities involving investment beyond certain thresholds .

The notification was issued on 27th January 1994 and was amended on
4th May 1994. This, it is hoped would provide an opportunity both for the
project proponents and Government to assess the impact of the
concerned project on the environment before it actually comes into play

1.5.4 The EIA study document fulfills the requirements for environmental
clearance from various agencies at the state level. These include State
Pollution Control Board and Committee of Experts working under the
aegis of Department of Science & Technology, State Governments.

1.6 SJVN’S INITIATIVE:

The regulatory framework and policy both at the central and state level
for environmental and social issues applicable to the HYDRO Power
Projects is also application to SJVN. In addition, SJVNL has also taken
into consideration the requirements of multilateral funding agencies while
finalising the Environment Policy . SJVNL sees its responsibilities under
the present legal framework as two fold as under: mandatory
requirements under the law and the guidelines of funding agencies; and
prescriptive requirements that influence management procedures
addressing environmental and social issues

SJVNL undertakes all its activities within mandatory requirements

under the National law and the guidelines of funding agencies, and
prescriptive requirements that determine the management
procedures for addressing environmental and social issues.
Mandatory environmental requirements for SJVNL at a national level
include: Land Acquisition Procedures under Land Acquisition Act, 1894.
Forest clearances under the Forest (Conservation) Act, 1980; specifically
Environmental clearances under Environment (Protection) Act,
1986.During the operations of the projects regulations like Hazardous
Wastes (Management and Handling) Amendment Rules, 2003 regarding
disposal of used transformer oil and Ozone Depleting Substances
(Regulation and Control) rules, 2000 putting restriction on use of ozone
depleting substances come into force and require voluntary enforcement
and funding agencies requirements some time. The Forest &
Environment Clearances procedure have been detailed in the Annexure -I
to III of this document.