Covid-19 and Environmental Clearance in India: A Note on the MOEF Memorandum

Prof. (Dr.) Sairam Bhat, Professor of Law and Coordinator of CEERA, NLSIU

Mr. Vikas Gahlot, Teaching Associate, CEERA, NLSIU 

Covid-19 has impacted governance in general and environmental governance in particular. It has changed the way countries have looked at business and human rights. It is obvious that during and post lockdown period, government decision making has been highly impacted. Physical governance has changed to online governance with meetings either getting postponed or being shifted to online. Most government offices worked on 50% staff and capacity, and so did many industries. Hence, many government decisions related to environmental governance were either postponed or were delayed sine dine. The present short article makes an analysis of the amendments made in the environmental governance regime in India during the Covid-19 outbreak, in respect of the prior Environmental Clearance requirement.

Prior Environmental Clearance (EC) is a cornerstone principle of sound environmental governance and a mandatory requirement under the law for all new projects or activities that are listed the schedule of Environment Impact Assessment Notification, 2006.[1] Under the Law, prior EC is required for 39 types of projects.[2] Even, the expansion and modernization of existing projects which entails capacity addition with change in process and/or technology of these projects require prior EC before any construction work or preparation of land by the project management can be undertaken. Prior EC is a lengthy process comprising of four stages which includes screening, scoping, public consultation and appraisal.[3] Prior EC is obtained from Central Government or the State Level Environment Impact Assessment Authority (SEIAA), as the case may be.[4] Once granted, the prior EC is valid for a period of 10 years in the case of River Valley projects, project life as estimated by the Expert Appraisal Committee of the State Level Expert Appraisal Committee subject to a maximum of 30 years for mining projects and 5 years for all other projects.[5] This period of validity is extendable to a further period of maximum 5 years upon an application made during the validity period.[6]

Taking into account the outbreak of Covid-19 and imposition of nationwide lockdowns and subsequent extension thereof, the Ministry of Environment, Forest and Climate change, on 6th July, 2020 vide an office memorandum, had extended the validity of prior EC in respect to all projects or activities expiring between 15th March 2020 and 30th April 2020, till 30th June 2020.[7] Further, upon a request by the Ministry of Finance, the Ministry has extended the validity of prior EC which were expiring from 1st May, 2020 to 31st December, 2020 till 31st March, 2021. This extension was a special case for the housing or infrastructure projects that were stalled under the SWAMIH (Special Window for Affordable and Mid Income Housing) Investment Fund-I.[8] This extension was subject to the same terms and conditions of the previous prior EC in order to ensure that operations of projects or activities are carried out without interruption.

The Environmental Impact Assessment Notification, 2006 was amended on 27th November, 2020 with the insertion of paragraph 9A. This paragraph related to the prior ECs whose validity was expiring in the financial year 2020-21. It extended the validity of such prior ECs till 31st March 2021 or six months from the date of expiry of validity, whichever was later.[9]

Now the Ministry of Environment Forest and Climate Change has issued a fresh notification on 18th January, 2021 for the extension of validity of prior EC.[10] The present notification exempts the period from 1st April, 2020 to 31st March, 2021 for the purpose of calculation of the period of validity of Terms of Reference (ToR) and declares that all activities undertaken during this period in respect of the ToR will be treated as valid.[11] The notification further makes amendments to the Environment Impact Assessment Notification, 2006, by substituting paragraph 9A, which was inserted earlier,[12] with a new paragraph. The new paragraph 9A exempts the above period (i.e. 1st April, 2020 – 31st March, 2021) from consideration of calculating the period of validity of prior EC.[13]

There are two major differences between the present notification and November, 2020 notification. Firstly, the November, 2020 notification related to the prior ECs whose validity was expiring in the financial year 2020-21, whereas the present notification applies to all prior ECs irrespective of whether they are expiring during the financial year 2020-21. Secondly, the November 2020 notification merely extended the period the period of validity till 31st March, 2021 (or six months from the date of expiry of validity, whichever is later), the present notification removes the period of 1st April, 2020 -31s March, 2021 altogether from calculating the period of validity of prior EC.

In this context, the question that arises is whether Covid-19 has become a force majeure defense in commercial and environmental matters? The current MoEF&CC notification seems to suggest the idea that it certainly has. It admits that Covid-19 and the subsequent lockdowns have adversely impacted the implementation of projects or activities. But whether, Covid-19 could be used as a defense for seeking postponed or delayed environmental clearance is a question that is left unaddressed by the present notification.

Featured Image sourced from –

[1] Ministry of Environment and Forests, Notification dated 14th September, 2006, S.O. 1533(E) (hereinafter Environment Impact Assessment Notification, 2006).

[2] Environment Impact Assessment Notification, 2006, Schedule.

[3] Id., para 7.

[4] Id. para 2.

[5] Id. para 9.

[6] Id.

[7] Impact Assessment Division, Ministry of Environment, Forest and Climate Change, Office Memorandum, F. No. 22-25/2020-IA.III (July 6, 2020),

[8] Id.

[9] Ministry of Environment, Forest and Climate Change, Notification dated 27th November, 2020, S.O. 4254(E).

[10] Ministry of Environment, Forest and Climate Change, Notification dated 18th January, 2021, S.O. 221(E).

[11] Id.

[12] Ministry of Environment, Forest and Climate Change, supra note 9.

[13] Id.

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