Environmental law and practice in India: overview
A Q&A guide to environment law in India. This Q&A provides a high level overview of environment law in India and looks at key practical issues including emissions to air and water, environmental impact assessments, waste, contaminated land, and environmental issues in transactions. In addition, answers to questions can be compared across a number of jurisdictions to assist in the management of cross-border transactions (see Country Q&A Tool).
This Q&A is part of the global guide to environment. For a full list of jurisdictional Q&As visit www.practicallaw.com/environment-guide.
Environmental regulatory framework
The main environmental laws in India include the:
Water (Prevention and Control of Pollution) Act 1974 (Water Act), which also shaped the powers, functions and hierarchy of the environmental agencies, the Central Pollution Control Board and the State Pollution Control Boards.
Air (Prevention and Control of Pollution) Act 1981 (Air Act).
Environment (Protection) Act 1986 (the EP Act). This umbrella law enables the central government to take measures it deems necessary to protect and improve the environment, and to prevent, control and abate environmental pollution. A wide range of rules and notifications have been adopted under it, such as the:
E-Waste (Management) Rules 2016 (notified 23 March, 2016);
Bio-Medical Waste Management Rules 2016 (notified 28 March, 2016);
Construction and Demolition Waste Management Rules 2016 (notified 29 March 2016);
Hazardous and Other Waste (Management and Transboundary Movement) Rules 2016 (notified 4 April 2016);
Manufacture, Storage and Import of Hazardous Chemicals Rules 1989;
Coastal Regulation Zone Notification 2011; and
Environment Impact Assessment Notification 2006.
Plastic Waste Management Rules 2016 (notified 18 March, 2016);
Wild Life (Protection) Act 1972.
Forest (Conservation) Act 1980.
Biological Diversity Act 2002.
Public Liability Insurance Act 1991.
National Green Tribunal Act 2010.
On 5 March 2016, the Ministry of Environment, Forests and Climate Change adopted a new method of classifying the industries it regulates, and introduced a new category of "white industries". These are practically non-polluting industries, that no longer need a consent to operate or a an environment consent under the Environmental Impact Assessment Notification. Instead, they merely need to notify the relevant State Pollution Control Board.
Whereas the earlier industry categories (red, orange and green) were essentially determined based on the size of industries, this new method is based on a pollution index (PI) for emissions (air pollutants), effluents (water pollutants) and hazardous waste generated apart from the consumption of resources. A PI score is allocated to each industrial sector as follows:
Red category: PI score of 60 and above. Table 1 annexed to the notification covers 60 sectors (for example, asbestos, nuclear power plants, shipbreaking, oil and gas extraction).
Orange category: PI score of 41 to 59. Table 2 lists 83 types of industries (for example, food and food processing, printing ink manufacturing, paint blending and mixing, and pharmaceutical formulations).
Green category: PI score of 21 to 40. Table 3 identifies 63 sectors (for example, saw mills, tyres/rube retreating, polythene and plastic products).
White category: PI score up to 20. Table 4 lists 36 types of industries (for example, solar power generation through solar photovoltaic cells, wind power, and mini hydro-electric power less than 25 megawatts).
There has been an upward trend in terms of regulatory enforcement, which can be explained by various factors. For instance, various states have started to insist on the installation of continuous online emissions/effluent monitoring systems, which gives the State Pollution Control Boards necessary and objective information to act. Moreover, the state high courts, the Central Supreme Court, and the various benches throughout India of the National Green Tribunal closely monitor the implementation and enforcement of environmental laws.
NGOs, think-tanks, and local groups formed after environmental issues are not being adequately addressed tend to use the media, the courts and the National Green Tribunals to raise their environmental grievances. This is often effective, since the judiciary is generally sympathetic to environmental concerns raised in the public interest.
There are also increasing collaborations between NGOs and industry in the context of Corporate Social Responsibility (CSR) obligations mandated under the Companies Act 2013.
Integrated/separate permitting regime
An integrated permit system is in place to a large extent. For instance, a consent to establish and subsequent consent to operate and their renewals under the Water Act, Air Act and Hazardous and Other Waste (Management and Transboundary Movement) Rules 2016 (replacing the Hazardous Waste Rules 2008) can typically be obtained by submitting a combined consent application to the relevant State Pollution Control Board.
The newly adopted E-Waste (Management) Rules 2016 (see Question 12) introduces a new concept of an Extended Producer Responsibility – Authorisation of Producers, which only requires one centralised application with the Central Pollution Control Board.
Depending on the type of activities undertaken by a company, multiple permits may need to be obtained.
Permits and regulator
The key environmental permits, or consents as they are referred to in India, must be obtained from the local State Pollution Control Board.
Only in certain cases is a permit or environmental clearance needed at central level, from either:
The Central Pollution Control Board (for example authorisation as a producer under the new E-Waste Rules 2016).
A department of the Ministry of Environment, Forest and Climate Change (for example, import/export of hazardous waste under the Hazardous and Other Waste (Management and Transboundary Movement) Rules 2016).
Length of permit
The State Pollution Control Boards have some discretion in determining the duration of consents, but there are efforts to streamline these periods for the various industry categories in each state. Typically:
An initial consent to establish is valid for one year (for example, during the construction of a site, but depending on the scale of the project this could be longer).
Consents to operate under the Water and Air Act vary between three to five years.
Industries are categorised in red, orange, green or white categories, depending on the pollution index score (see Question 1):
White category industries (practically non-polluting industries) do not need to obtain a consent to operate.
Green category industries can generally submit a simplified consent to operate application. Their initial consents to operate in many states are valid for five years.
Initial consents to operate for orange categories are typically three years, and for red categories one or two years.
Renewal applications are typically granted across industries between four to six years, assuming there have been no severe non-compliance issues. In there is a non-compliance issue, State Pollution Control Boards can revoke the consent to operate and reissue it only after the non-compliance has been rectified. In such situations, companies often only obtain a one-year consent to operate, to ensure close monitoring by the State Pollution Control Board and ongoing compliance.
Some states have also adopted an auto-renewal of consents for all categories based on self-certification if certain criteria are met, such as:
When there is no increase in the overall production capacity and pollution load.
If there is only a marginal increase (up to 10%) in capital investment.
Some key waste-management laws, such as the E-Waste Rules 2016, and the Hazardous and Other Wastes Rules 2016, explicitly refer to authorisations being valid for five years.
Restrictions on transfer
Consent orders and environmental clearances (obtained under environmental impact assessment (EIA) notification) are readily transferable, and a straightforward procedure applies:
The transferor must provide a written no objection to the relevant regulatory authority.
The transferee must submit an application, with an undertaking that it will comply with all the conditions in the consent order.
Supporting documents must be provided (explaining the underlying reason of the transfer, change of name, change of management, and so on).
Failure to obtain the required consent order will incur penalties. For instance, under the Water Act, any person who breaches the consent application process is punishable with imprisonment for at least 18 months, which can be extended to six years, and a fine. Any company operating without a consent to establish or operate will immediately receive a closure notice from the relevant State Pollution Control Board.
Moreover, the Supreme Court and the state high courts can and do impose exemplary damages for damage to the environment. For instance, in the Sterlites Industries case (2013), one of the largest copper smelter plants in India was found to be operating without a valid renewal of its environmental consent to operate. When assessing the company's liability to pay damages (that is, for damage caused to the environment during the 15 years it operated without a valid environmental permit), it reviewed the company's annual report, and determined that 10% of the profit before depreciation, interest and taxes (PBDIT) had to be paid as compensation, which amounted to INR1 billion.
The Water Act, Air Act and Environmental Protection Act all contain specific provisions for offences committed by companies. Under these Acts, every person who is in charge when an offence is committed, and is responsible to the company for the conduct of its business, is guilty of the offence and liable to be prosecuted and punished accordingly. However, a person is not liable if he proves that the offence was committed without his knowledge, or that he exercised all due diligence to prevent the offence.
Further, if the offence was committed with the consent or connivance, or is attributable to any neglect by a director, manager, secretary or other officer of the company, the other person is also guilty of the offence, and liable to be prosecuted.
Permits and regulator
Obtain a consent to establish/operate under the Water Act.
Submit a combined consent application under the Water Act/Air Act/Hazardous and Other Waste Rules.
No person must knowingly cause or permit any poisonous, noxious or polluting matter (determined under standards laid down by the Central Pollution Control Board, or complemented by the standards of the State Pollution Control Boards) to enter, directly or indirectly, into any stream, well or sewer, or on land (Water Act).
Similarly, a person must not cause or permit any other matter to enter into a stream, which may (directly or with similar matter) impede the proper flow of the water of the stream, in a manner leading or likely to lead to a substantial aggravation of pollution due to other causes or its consequences. These broadly drafted provisions of the Water Act tend to cover a wide range of activities which may cause or aggravate water pollution.
The Water Act and Air Act also impose a strict information accident reporting and preventing obligation on industries. If due to an accident or other unforeseen event any poisonous, noxious or polluting matter is discharged, or is likely to be discharged into a stream, well, sewer, or on land, which causes or is likely to cause water pollution, the person in charge must immediately notify this to the relevant State Pollution Control Board.
Companies who cause water pollution can be ordered to clean up the pollution caused and pay compensation to remedy the polluted environment, or to possible victims.
There are various possible approaches. For instance, if a State Pollution Control Board believes that water or soil pollution is about to be caused, it can apply to a court for a restraining order. The court can then order the entity that is about to or that has caused the water pollution to refrain from doing so or to remove it. If the party fails to act, the court can also authorise the State Pollution Control Board to remove the water pollution. Any expenses incurred by the State Pollution Control Board are then recoverable from the party that has caused the pollution.
Similarly, in an emergency the State Pollution Control Board can act immediately to prevent, remove or mitigate the water pollution, and all expenses are recoverable from the person causing or failing to effectively prevent the water pollution.
Most significantly, the State Pollution Control Boards have power to issue far-reaching directions, which include:
Closure of the company, or at least the part or process of the company that is causing the pollution (which can extend to the stoppage of an entire manufacturing process, until the pollution has been addressed).
Stopping the electricity or water supply to the company.
These powers are often relied on by the regulatory authorities, particularly when companies fail to reply or adequately respond to written show cause notices that precede these actions.
Companies can approach courts to obtain a stay against these closure notices, or can appeal against directions to the National Green Tribunal (it has four zonal benches throughout India).
Apart from penalties for not having a valid environmental permit/consent (see Question 5, Penalties), the Water Act has the following penalty provisions.
Non-compliance with closure direction. The Water Act and Air Act provide that whoever fails to comply with a closure direction or stoppage (of electricity and water) direction is liable to imprisonment for a term of at least one and a half years up to six years and a fine. If the breach continues, an additional fine up to INR5,000 for every day of non-compliance can be imposed.
Other offences. The Water Act and the Air Act set out various other offences, such as:
Failure to provide information to the Pollution Control Boards.
Failure to notify an accident.
Knowingly or wilfully making a false statement.
Wilfully tampering with monitoring equipment.
They are all punishable with imprisonment for a term up to three months, or a fine up to INR10,000, or both.
Residuary penalty. A person who breaches the Water Act or the Air Act, or fails to comply with any order or direction with no specific penalty, is punishable with imprisonment up to three months, or a fine up to INR10,000, or both.
Environment Protection Act and National Green Tribunal Act. Unlike the Water Act and the Air Act, the Environmental Protection Act, which is the umbrella act for the numerous rules adopted under it, such as the waste rules (see Question 12), provides only one type of punishment. Any breach of the rules under the Environment Protection Act is punishable with imprisonment up to five years, or a fine up to INR100,000, or both.
The Ministry of Environment, Forest and Climate Change published a draft Environmental Laws (Amendment) Bill in October 2015, to significantly increase penalty amounts to be a real deterrent. The amounts collected would be used for remediation and reclamation of polluted sites and general improvement of the environment. However, it has not yet been adopted as a final law. It is difficult to assess whether it will be adopted, as no additional public information has been provided regarding this draft law. For example, the penalty for causing substantial damage to the environment could range from INR100 million to INR150 million.
However, amounts imposed by courts are now significantly higher already. Under the National Green Tribunal Act 2010, National Green Tribunals have the power to order:
Relief and compensation to the victims of pollution.
Restitution of damaged property.
Restitution of the environment.
These amounts are in addition to amounts payable under the Public Liability Insurance Act 1991. Moreover, National Green Tribunals can divide the compensation payable under the following separate heads as specified in Schedule II of the National Green Tribunal Act:
Permanent/temporary disability or other injury or sickness.
Medical expenses incurred for treatment of injuries or sickness.
Damages to private property.
Loss and destruction of any property other than private property.
Expenses incurred by the government or a local authority in providing relief, air and rehabilitation to the affected persons, or compensation for environmental degradation and restoration of the quality of the environment.
Claims including cost of restoration on account of any harm or damage to the environment, including pollution of soil, air, water, land and ecosystems.
Claims on account of any harm, damage or destruction to fauna and aquatic fauna and flora, crops, vegetables, trees and orchards.
Loss of business or employment, or both.
Any other claim arising out of or connected with any activity of handling hazardous substances.
Most significantly, the National Green Tribunal Act provides that anyone who fails to comply with any order or award of the National Green Tribunal Act is punishable with imprisonment for a term up to three years, or a fine up to INR100 million, or both. If the failure or breach continues, an additional fine can be imposed up to INR25,000 per day.
The penalty under the National Green Tribunal Act is even more strict for companies. If a company fails to comply with an order or award of the National Green Tribunal, it is liable to a fine up to INR250 million, and an additional fine up to INR100,000 for each day the breach continues.
Permits and regulator
Companies must apply to the relevant State Pollution Control Board for a common consent order, or an integrated environmental permit under the Air Act, Water Act and Hazardous and Other Waste Rules.
The Air (Prevention and Control Pollution) Act 1981 is similar to the Water Act 1974, in terms of consent application management, air pollution standards set by the Central Pollution Control Board, and the type of infringements and penalties (see Question 6). State governments in consultation with State Pollution Control Boards identify air pollution control areas, which determine how they approach consent applications.
State Pollution Control Boards can order companies to clean-up air pollution and issue directions to companies for closure or stoppage of electricity or water supply, until the cause is adequately addressed. Courts and the National Green Tribunals can order compensation to be paid by companies for harm caused to the environment or people (see Question 6).
The structure and penalties under the Air Act are similar to those under the Water Act (see Question 6).
Climate change, renewable energy and energy efficiency
India launched a National Action Plan on Climate Change in 2008, which focuses on the following areas or missions, under the National Mission on Enhanced Energy Efficiency (NMEEE):
Enhanced energy efficiency.
Sustaining the Himalayan ecosystem.
A "green" India.
Strategic knowledge for climate change.
Under the Jawaharlal Nehru National Solar Mission (JNNSM), India decided in June 2015 to increase its solar energy five-fold to reach 100,000MW, by 2022. The target mainly consists of 40GW rooftop and 60GW through large and medium scale grid connected solar power projects.
As part of the NMEEE, the Perform, Achieve and Trade (PAT) Mechanism was launched, a new market-based mechanism to promote energy efficiency among energy intensive large industries, by allowing trade in energy saving certificates (ESCerts). The Energy Conservation Act 2001 imposes specific energy consumption reduction targets for 478 designated consumers in the following industrial sectors which can take part in the PAT mechanism:
Thermal power stations.
Iron and steel.
Pulp and paper.
ESCerts can be traded among companies to meet their compliance requirements, or can be banked for the next cycle of energy savings requirements.
On 31 March 2016, comprehensive amendment rules were notified, essentially for the methodologies underpinning the PAT mechanism.
India ratified the UN Framework Convention on Climate Change in 1993 and the Kyoto Protocol in 2002. As a non-Annex-I country, India did not take part in the flexibility mechanisms for developed countries (emission trading and joint implementation). India has been a leading host country of clean development mechanism (CDM) investments, enabling Annex-I countries to invest in emission-reducing projects in developing countries (thereby earning certified emission reductions).
As part of the COP21 negotiations and in the run-up to the Paris Agreement on Climate Change (December 2015), India submitted its Intended Nationally Determined Contribution (INDC) in October 2015, outlining its post-2020 climate actions. India's INDC includes:
A reduction in emissions intensity of its GDP by 33% to 35% by 2030, from 2005 levels.
Creating an additional carbon sink of 2.5 to 3 billion tons of carbon dioxide equivalent, through additional forest and tree cover by 2030.
See Question 8.
Environmental impact assessments
Many activities require prior environmental clearance, including:
Mining of minerals.
Offshore and onshore oil and gas exploration, development and production.
Oil and gas transportation pipelines.
Thermal power plants.
Nuclear power projects and processing of nuclear fuel.
Metallurgical industries (ferrous and non-ferrous).
Asbestos milling and asbestos-based products.
Pulp and paper industry.
Building and construction projects.
Townships and area development projects.
In 2014, the Ministry of Environment, Forest and Climate Change issued a compendium of all office memoranda and notifications issued since 2006, which is a very useful reference for companies.
Permits and regulator
The Environment Impact Assessment Notification 2006 identifies various activities where prior environmental clearance must be obtained by the project proponent. The activities are classified into two categories, A and B, based on the spatial extent of potential impacts and potential impacts on human health and natural and man-made resources.
New projects and the expansion and modernisation of existing projects falling under the relevant activities require prior environmental clearance:
Category A activities require clearance from the Central Ministry of Environment, Forests and Climate Change (which bases its decision on the recommendation of the Expert Appraisal Committee).
Category B activities require clearance from a state-level Environment Impact Assessment Authority (SEIAA).
There are four stages to obtain environmental clearance:
Stage 1 screening (only for Category B projects and activities).
Stage 2 scoping.
Stage 3 public consultation.
Stage 4 appraisal.
Public hearings are not required for some projects, such as:
Modernisation of irrigation projects.
Projects in industrial estates or parks.
Expansion of roads and highways not needing further land acquisition.
Building, construction, area development and townships.
An Expert Appraisal Committee (EAC) or State Level Expert Appraisal Committee (SEAC) must complete its assessment and make a recommendation within 60 days from receipt of all required documents and completion of the public hearing. The regulatory authority will consider the recommendations of the EAC or SEAC and notify its decision to the applicant within 45 days of receipt of the recommendations of the EAC or SEAC (that is, within 105 days of receipt of the final environment impact assessment report).
For projects which do not require an environment impact assessment (B-2 projects, identified by the SEAC in stage 2 scoping stage), the final decision must be notified within 105 days of receipt of the complete application with the required documents.
The prior environmental clearance granted for a project or activity is valid for:
Ten years for river valley projects.
The project life estimated by the EAC or SEAC, subject to a maximum of 30 years for mining projects.
Five years for all other projects and activities.
It is mandatory for the project management to submit half-yearly compliance reports on the terms and conditions in the environmental clearance.
A prior environmental clearance granted for a specific project or activity to an applicant can be transferred during its validity to another legal person entitled to undertake the project or activity. Transfer is made on application by the transferor, or by the transferee with a written no objection by the transferor, to the relevant regulatory authority, on the same terms and conditions and for the same validity period. No reference to the EAC or state-level EAC is necessary in such cases.
Because the EIA Notification 2006 was issued under the Environmental Protection Act 1986, the penalties in the Environmental Protection Act 1986 apply to any infringement of the EIA Notification 2006 (see Question 6).
Permits and regulator
Specific permits, consents or authorisations must be obtained by various parties generating or handling waste, under the following key waste-management laws:
Municipal Solid Waste (Management and Handling) Rules 2000. The draft Solid Waste Management Rules 2015 were notified recently, but have not yet been finalised. The existing Municipal Solid Wastes Rules mainly impose obligations on local authorities. The soon to be adopted Solid Waste Management Rules are expected to significantly expand obligations on "waste generators".
Plastic Waste Management Rules 2016.
E-Waste (Management) Rules 2016.
Bio-Medical Waste Management Rules 2016.
Construction and Demolition Waste Management Rules 2016.
Hazardous and Other Waste (Management and Transboundary Movement) Rules 2016.
The waste rules make it mandatory to obtain a prior consent or authorisation from the State Pollution Control Board, or the Central Pollution Control Board (for the E-Waste Rules).
The Municipal Solid Wastes (Management and Handling) Rules 2000 define the operator of a facility as a person who owns or operates a facility for collection, segregation, storage, transportation, processing and disposal of municipal solid waste. Both municipalities and operators of a facility must obtain prior authorisation from the State Pollution Control Board.
In the other waste rules the term occupier is used, as the person who in relation to any factory or premises has control over the affairs of the factory or the premises, and includes in relation to a hazardous substance the person in possession of the substance or waste.
Special rules for certain waste
Hazardous and Other Waste (Management and Transboundary Movement) Rules 2016 (notified 4 April 2016) (Hazardous and Other Waste Rules). This is in many ways the most comprehensive of the waste management rules. The first hazardous waste rules in India date back to 1989 (coinciding with the adoption of the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal 1989, to which India is a party).
The Hazardous and Other Waste Rules impose detailed obligations on the occupier for the management, storage, packaging, labelling and transport of such waste. All parties involved must sign a movement document, and copies of it must be submitted to the State Pollution Control Board.
The Hazardous and Other Waste Rules contain a separate chapter on the import and export of hazardous waste, for which prior approval must be obtained from the Central Ministry of Environment, Forests and Climate Change (MoEFCC). MoEFCC in its review of applications is assisted by a technical review committee, which meets at regular intervals and reviews each import/export application.
The definition of hazardous waste is detailed, with a strong focus on whether the material exhibits or triggers certain hazardous characteristics.
Plastic Waste Management Rules 2016 (notified 18 March 2016). The Plastic Waste Management Rules 2016, replacing the 2011 Rules, is wider in scope, and:
More clearly imposes obligations on "brand owners", "producers" and "importers".
Introduces the notion of extended producer responsibility, in the context of plastic waste management.
Covers for the first time "waste generators", which includes every person generating waste.
Explicitly refer to "waste pickers", an important element since the waste management sector or the segregation of it is largely not formally regulated. The failure of earlier waste management rules to acknowledge this segment has often undermined effective implementation of waste rules. This is also true for the management of e-waste.
E-Waste (Management) Rules 2016 (notified 23 March 2016) (E-Waste Rules). The recently adopted E-Waste (Management) Rules 2016 enter into force on 1 October 2016. This is to give time for the various stakeholders to organise effective take-back mechanisms or collection centres, which failed under the earlier 2011 Rules.
The new E-Waste Rules apply to both every:
Manufacturer, producer, bulk consumer, other consumer, collection centre, refurbisher, dismantler and recycler.
Dealer and e-retailer involved in the manufacture, sale, transfer, purchase, collection, storage and processing of e-waste or electrical and electronic equipment (EEE), as detailed in Schedule I to the E-Waste Rules.
An important improvement is that a producer can now obtain one centralised extended producer responsibility authorisation from the Central Pollution Control Board, instead of one from each State Pollution Control Board where it has a market presence.
Another key change is that the operator can fulfil its extended producer responsibility obligation by becoming a member of the newly created Producer Responsibility Organisation, or of an e-waste exchange, or both. These were introduced to facilitate implementation of the E-Waste Rules, given the failure by industry to create effective mechanisms to implement the earlier rules.
The Environmental Protection Act, the umbrella act for numerous rules adopted under it such as the waste rules, provides for only one type of punishment. Any breach of these rules is punishable with imprisonment for a term up to five years, or a fine up to INR100,000, or both (see Question 6).
There is new planned legislation which would significantly increase penalty amounts (the draft Bill was introduced in 2015). Importantly, the National Green Tribunals can impose significantly higher penalty amounts on companies for non-compliance with their directions. If a company fails to comply with any order or award of the National Green Tribunal, the company is liable to a fine up to INR25 million, and an additional fine up to INR100,000 for each day the breach continues.
India is a major importer of chrysotile (white) asbestos, and has only recently banned blue and brown asbestos. In 2009 and 2014 a draft Bill, the White Asbestos (Ban on Use and Import) Bill 2014 was tabled in parliament, seeking a total ban on the use and import of white asbestos in India. However, it has not yet been adopted.
Owners/occupiers of premises have no specific duties to discharge for asbestos on site, other than the general occupational health and safety regulations applicable to all industries under, among other things, the Factories Act 1948 (and asbestosis has been notified as an occupational hazard under the Factories Act).
Permits and regulator
Asbestos-related activities fall into the red category, that is, the most polluting industries, and environmental permit/consent applications are reviewed accordingly by the State Pollution Control Boards. A prior environmental clearance must be obtained and a related environmental impact assessment report must be prepared for industries proposing to engage in activities relating to asbestos milling and asbestos-based products.
Regulator and legislation
India does not have specific legislation on contaminated land. The Environmental (Protection) Act, the Water Act, the Hazardous and Other Waste Rules 2016, and extensive case law based on the polluter pays principle, form the legal basis on which regulatory authorities and courts address land contamination. The regulatory authority is the State Pollution Control Board.
Investigation and clean-up
Where a discharge of an environmental pollutant exceeding the prescribed standards occurs or is believed to occur, due to an accident or other unforeseen event, the Environmental (Protection) Act imposes a notification obligation on the person responsible for the discharge, and on the person in charge of the place where the discharge has occurred or is believed to occur.
These persons must prevent or mitigate the environmental pollution caused by the discharge. Similarly, State Pollution Control Boards can, based on their own information or complaints filed by affected parties, order an investigation and clean-up of the soil contamination on the occupier, that is, the person currently in charge of the site, even in cases of historical pollution.
In emergencies, the State Pollution Control Boards can undertake remedial measures necessary to prevent or mitigate environmental pollution. The costs of these will be recovered from the liable persons.
National Green Tribunals have power to order:
Relief and compensation to the victims of pollution.
Restitution of damaged property.
Restitution of the environment.
Non-compliance with directions of the State Pollution Control Board can lead to a closure notice and trigger the penalty specified under the Environmental Protection Act. Non-compliance with court orders leads to even more significant penalties (see Question 6).
Because there is no specific legislation which addresses historical pollution as such, current occupiers are liable for environmental pollution, including soil pollution, affected groundwater, and so on. In relation to the regulatory authorities this liability cannot be excluded. Contractual representations and warranties can address liability between previous and current owners of a site.
Since the division of liability based on historical pollution is not reflected in the environmental laws in India, the regulatory authorities and courts hold current occupiers liable, whether they have caused the pollution or not. Because the focus is on the principle of "occupiers", as referred to in all environmental laws and rules, tenants are often identified as the occupiers, that is, the party who has control over the affairs of the factory or premises which causes the pollution, or where the original pollution took place.
The Central Pollution Control Board recently published Guidelines on Implementing Liability for Environmental Damage due to Handling and Disposal of Hazardous Waste and Penalties. This contains an overview of indicative liability costs for site assessment and remediation, with costs of:
US$30,000 to US$225,000 for site assessments caused by landfill breaches and release of hazardous waste into the environment.
US$525,000 for dumping hazardous waste on open ground.
Remediation costs between US$150,000 and US$3,765,500.
Previous owner/occupier liability
A previous occupier being liable is less common. It is more likely if, for instance, a site has been identified as causing pollution, has no current occupier, and the previous occupier can still be identified. Otherwise, the current occupier is typically liable to the regulatory authorities and courts, and claims between current and earlier occupiers have to be settled contractually.
Limitation of liability
Parties can make contractual liability arrangements, but cannot limit their liability otherwise. The Supreme Court has evolved two far-reaching environmental liability concepts, by holding that:
Enterprises engaged in hazardous or inherently dangerous activities are absolutely liable to compensate those affected by an accident (such as the accidental leakage of toxic gas). Such liability is not subject to any of the exceptions under the tort principle of strict liability in Rylands v Fletcher (such as act of God, act of third party, consent of victim and statutory authority).
The measure of compensation must be correlated to the magnitude and capacity of the enterprise. The larger and more prosperous the enterprise, the greater the amount of compensation payable by it for harm caused by an accident, in the carrying on of hazardous or inherently dangerous activities.
In India, lenders do not directly incur liability for environmental wrongdoing and/or remediation costs for contaminated land, unless they are directly responsible or liable for the management of the company, with a board position or substantial shareholding and involvement in the day to day running of the company.
Lenders normally undertake prior due diligence and insist on appropriate conditions before granting a loan, on the management of the company to take timely effective measures to minimise liability.
Though protection of the environment is not cemented in the Constitution as a fundamental right, the Supreme Court has interpreted the fundamental right to life and personal liberty to include the right to a wholesome environment.
As a result, public interest litigation, filed by concerned citizens or non-governmental organisations based on the fundamental right to a wholesome environment, is routinely filed in the courts, and has to a large extent affected environmental law in India.
The courts are very proactive, and even take up environmental issues on their own initiative merely based on news articles covering environmental issues. They often tend to influence if not determine environmental policies, particularly when the executive has failed to fulfil its obligations.
Environmental liability and asset/share transfers
A buyer inherits, in the normal course as the owner, any pre-acquisition environmental liability of the company relating to the asset, for example, contaminated water or land, or pre-existing environmental concerns involving payment of damages or compensation or remedial measures.
An action for breach of environmental laws is against the target company, so impacts on the buyer through affecting the profitability of the company and its dividend paying capacity.
The seller retains environmental liability even after an asset sale if he was convicted of a criminal offence under the environmental laws before the sale (see Question 15). The seller can also contractually retain environmental liability and, for example, commit to pay compensation or other remedial measures.
Usually there is no legal obligation on the seller to disclose environmental information to the buyer, particularly if the sale is on an "as is where is" basis. The seller is only bound to make disclosure where sale documents contain specific representations and warranties from the seller about environmental violations/compliance, past, existing or potential, backed with indemnities, failing which the seller can be liable for a breach or incomplete disclosure.
The position is similar to that for an asset sale, if there is a share purchase agreement providing for representations and warranties (see above, Asset sale).
It has now become common for buyers in India to undertake environmental due diligence in an asset sale with environmental law implications. In particular due to the active functioning and faster case management of the National Green Tribunals, public interest litigation and heavy penalties for environmental infringements and non-compliance with National Green Tribunal Orders (see Question 6).
Environmental due diligence covers investigations of all issues under environmental laws, particularly:
Air, water pollution and land/water contamination.
Practical and financial implications.
Identification of the potential risk or threat.
Estimation of the amount of penalties and remediation costs involved.
Types of assessment
Environmental Impact Assessments (EIA) are an important management tool for ensuring optimal use of natural resources for sustainable development, and a prerequisite for many new and expansion projects in India. The MoEFCC has prepared numerous sectoral EIA Guidelines.
EIAs can only be undertaken by consultants duly accredited by the Quality Council of India/National Accreditation Board of Education and Training (QUI/NABET).
Registration of QCI accredited consultants is valid for the period of accreditation, up to three years. Accredited consultants are allowed to appear before the:
Expert Appraisal Committee, for Category A Projects.
State Level Expert Appraisal Committee or State Environment Impact Assessment Authority, for Category B projects.
Approved EIA consultants and co-ordinators only engage in the approved sectors, as authorised by the QCI.
Accredited environmental consultants must be used for conducting EIAs in various sectors. The terms of reference or letters of engagement containing the scope of work vary, due to the purpose of the engagement and level of activity involved. Besides standard clauses, all relevant issues should be clearly covered in the engagement letter or contract, which can include:
Performing the services with the degree of care, skill and diligence generally accepted in the performance of such services.
Obtaining insurance for himself and his workers, for a specified amount.
Ownership of records and reports to remain with the client.
Disposing of sample material and sample residuals after a specified period.
Limitation of liability of the consultant to the client, for all claims arising out of or in any way relating to services limited to direct damages and/or to specific liability.
Representation of the consultant that he and his workers have the capability, experience, means and appropriate licences and permits required to perform the services contemplated by the agreement.
No unauthorised release of information to any third party.
Capability and competence to make proper representations before the concerned authorities, and to obtain consents, permits and approvals.
Not carrying out illegal practices, payment of bribes, and so on.
Environmental warranties and indemnities are normally given in asset sales involving environmental issues, such as air, water pollution, land and water contamination, when agreed by the parties. They cover all appropriate issues relating to compliance and violations of environmental laws, including:
Status of notices received, if any, from environmental authorities and action taken.
Whether any investigations have taken place in the past or are being conducted or expected in future.
Any past violations or penalties imposed.
Whether any cases are pending before the authorities and courts, and their status.
Extent of liability and potential liability in terms of violation of environmental laws and punishments, both criminal and civil.
The amount of indemnities, which may be based on expert reports of potential liability, and subject to negotiation between the parties and the insurance company.
Provision can be made for indemnities in the share purchase agreement. Indemnities can be reflected in a discounting of the purchase price of the shares, or buy back of the shares.
Reporting and auditing
The concept of public registers for tracking environmental pollution is not yet entrenched in India. However, there are increasing efforts by the Central Pollution Control Board and State Pollution Control Boards to publish such information on their websites, for example:
A list of closure notices issued.
A list of non-complying or non-responsive companies.
Status of pending and rejected consent and authorisation applications.
The same is true for authorities in charge of environmental clearance applications that require EIAs to be submitted.
Third party procedures
Typically, persons rely on the Right to Information Act 2005 to obtain information from a public authority, and do not need to justify this request. This is a very effective route, and is often used by citizens to obtain information on the status of environmental permits, show cause notices, status of remediation, and so on.
Companies must submit an annual environmental statement to the State Pollution Control Board from which they obtained the relevant consent or authorisation. This is an effective control mechanism for the authorities to assess whether processes and pollution levels comply with conditions specified in the consent orders. The environmental statement must include information on the:
Industry's operation or process.
Water and raw material consumption.
Pollution discharged into the environment (name of pollutants, quantity discharged, concentration, and the percentage of variation from the prescribed standards and the reasons for deviation).
Details of hazardous waste and solid waste generated (along with the characteristics of the waste).
Impact of pollution control measures taken on conservation of natural resources, as well as on production costs.
Any additional measures/investment proposals for environmental protection, including abatement of pollution.
For the information and accident information requirements relating to pollution or believed pollution, see Question 6. They are imposed by almost all environmental laws.
The Environmental Protection Act, the Water Act, and the Hazardous Waste Rules all impose accident reporting obligations. Additionally, annual environmental statements must be submitted by consent holders to the State Pollution Control Boards (see Question 6).
State Pollution Control Board officers have the power to enter and inspect any place, to:
Examine any plant, record, register, document or other material object.
Search any place in which he has reason to believe that an offence has or is about to be committed.
The Code of Criminal Procedure 1973 applies, since it applies to searches and seizures under the authority of a warrant.
Types of insurance and risk
The Public Liability Insurance Act 1991 requires an insurance policy to be taken out by owners, users or transporters of hazardous substances, as defined under the Environment Protection Act, which exceed the minimum quantity specified in the Public Liability Insurance Act. The public liability policy can be extended to cover pollution risk subject to a no objection certificate from the Pollution Control Board.
Under the Public Liability Insurance Act, the any one accident (AOA) must represent the paid up capital of the company, subject to a maximum of INR50 million. The AOA limit is fixed at maximum INR150 million. Under the Public Liability Insurance Act, the excess of any award that exceeds the AOA limit is paid by the government through the Environment Relief Fund. The insured must contribute an amount to this fund which is equivalent to the premium paid under the Public Liability Insurance Act Policy.
There is no standard insurance policy issued by all insurance companies but there are various types of insurance cover for environment damage or liability, as negotiated between the insurance company and the client.
While insurance under the Public Liability Insurance Act is mandatory, others are subject to negotiation and finalisation between the insurance company and those seeking to obtain appropriate insurance.
2016 saw the long-awaited overhaul of many waste management laws. The draft Environmental Laws (Amendment) Bill 2015 particularly seeks to provide for "effective deterrent penal provisions" by, among other things, significantly increasing monetary penalty amounts for remediation and reclamation of polluted sites and general improvement of the environment (see Question 6).
Final notification of the draft Dangerous Goods (Classification, Packaging and Labelling) Rules 2013, which would bring the existing legislation more in line with the globally harmonised system, is still awaited.
The regulatory authorities
Ministry of Environment, Forests and Climate Change
Main activities. The MoEFCC is the agency in the central government for the planning, promotion, co-ordination and overseeing of India's environmental and forestry policies and programmes. It is also the agency for the United Nations Environment Programme (UNEP), and supervises implementation of multilateral environmental agreements, including for cross-border and import/export issues.
Central Pollution Control Board (CPCB)
Main activities. The CPCB adopts national environmental standards under various environmental laws, advises the central government on pollution matters, offers technical assistance to SPCBs, and compiles national data on pollution.
State Pollution Control Boards (SPCBs)
Main activities. The SPCBs are the main interface with companies that need to obtain consents to establish, consents to operate, renewals and authorisations under the various environmental laws.
National Green Tribunal
Main activities. The National Green Tribunal (NGT) website offers a clear overview of all cases handled by the various NGT benches throughout India.
Els Reynaers Kini, Partner
Professional qualifications. Lawyer, India
Non-professional qualifications. LLB, Belgium, 1993 to 1998; LLM, University of Georgia, 1998 to 1999; LLB, Delhi University, 2002 to 2005
Areas of practice. Environmental law; regulatory compliance; nuclear energy.
Languages. English, Dutch, French.
Professional associations/memberships. IBA, EHS Committee; International Nuclear Law Association (INLA), President, 2015 to 2016; Nuclear Law Association, India, General Secretary
Co-edited the Jindal Global Law Review's Special Issue on Environmental Governance (April 2015).
India's Nuclear Trade - Inching Forward?, in Key Developments in Environmental Law 2014, Canada Law Book.
Robert J. Gruendel and Els Reynaers, Through the Looking Glass: Placing India's New Civil Liability Regime for Nuclear Damage in Context, Nuclear Law Bulletin, No. 89, Vol. 2012/1.
The Precautionary Principle, Multilateral Treaties and the Formation of Customary International Law, Editions Interuniversitaires Suisses (EDIS), 2008, 175 pp.
The Status of the Precautionary Principle in Public International Law, in Essays on the Future of the World Trade Organization, Vol. I: Policies and Legal Issues, edited by J. Chaisse and T. Balmeli, EDIS, 2008, pp. 480.
The Relationship Between WTO Rules and Specific Trade Obligations Set Out in Multilateral Environmental Agreements, in Beyond the Transitory Phase of the WTO - An Indian Perspective, 2004, 683pp.
Meeta Mehra, Els Reynaers, et al., Trade and Environment in the World Trade Organization: A Sustainable Development Perspective, in Transition Towards Sustainable Development in South Asia, edited by K. Deb and L. Srivastava, TERI, New Delhi, 2003.
Malini Ranganathan and Els Reynaers, Enabling Environments for Technology Transfer, prepared for the UNFCCC (document: FCCC/TP/2003/2, 4 June 2003).
Surender Pal Bhatia, Senior Adviser,
Professional qualifications. Lawyer, India
Areas of practice. Corporate and commercial law; company Law; Foreign Exchange Management Act; contracts; IPRs; HR; joint ventures; due diligence; doing business in India; regulatory compliance; environmental law.
PG DSS, XISS (Personnel Management and Industrial Relations) 1964.
MA (Public Administration), Utkal, 1984.
LLB, Calcutta, 1988.
Languages. English, Hindi
Professional associations/memberships. Bar Council of India, Delhi; Supreme Court Bar Association
Publications. Contributing articles to various magazines on current issues relating to foreign direct investment; company law; due diligence and environmental law.