India: Environment Ministry allows for ECs to be extended for the life of the mine, subject to reviews

By SteelMint Bureau/Meera Mohanty

The Ministry of Environment and Forest, Climate Change, in its 12 April 2022 notification, has decided Environmental Clearances (ECs) for mining projects shall now be valid from the date of execution of a lease and through the life of the mine or for 30 years, whichever comes earlier. ECs for mining projects, currently valid for the most for a maximum of 30 years, will henceforth be "extended" for 20 more years.

The Government notification explained that considering that leases offered under the amended Mines and Minerals (Development and Regulation) Act were for 50 years it was necessary to align the validity of ECs to that of the lease terms. This concession though is subject to reviews and will require the project to be examined every 5 years after the first 30 years by the concerned Expert Appraisal Committee. The committee can impose additional conditions if it feels the need for added environmental safeguards. The project proponent would be applying for an "extension" and not a fresh clearance and would thus not require a fresh environmental impact assessment or public hearing as it might have otherwise done.

Considering the high gestation periods that nuclear and hydropower projects had seen in the country "for reasons beyond the project proponents' control such as geological surprises, delay in Forest Clearance, land acquisition, local issues, rehabilitation, and resettlement", the Ministry has extended their ECs for a period of:

• 13 years in the case of River Valley projects,
  
  
• 15 years in the case of Nuclear power projects
  
  
• 10 years in the case of all other activities, excluding mining.
  
  
• 10 years for Townships and Area Development projects (only for activities that the developer is responsible for).
  
  

These projects can seek extensions of their ECs by a maximum of 2 years in the case of River Valley projects, 5 years in the case of Nuclear power projects, and one year in the case of all other projects which can be granted either directly by the ministry or referred to the concerned Expert Appraisal Committee.

The environmental impact of a mining project is up for scrutiny even after the mine is up and running as per plans approved under its ECs. An EC granted to a non-mining project is for the period of its construction. These clearances are then valid for the life of the project, be it 50 or 100 years.

In a separate office memo, dated 11 April 2022, the Ministry has also rationalised the validity of ECs with Forest Clearances (FC) which, particularly in the context of large hydro projects, have often taken longer than expected, says the ministry. Forest clearances are granted in two stages. Post the Supreme Court's 'Lafarge' ruling which prevents "fait accompli" excuse for granting clearances, an EC can only be applied for after Stage I FC has been granted and the application appraised only after Stage II is applied for. The MoEFCC will now consider the time taken to obtain Stage II FC, after the grant of an EC and not exceeding two years, as part of the validity of the EC.