DILUTION OF ENVIRONMENTAL NORMS THROUGH NOTIFICATIONS

This article is written by Vrinda Bhardwaj of O.P Jindal Global University, an intern under Legal Vidhiya

Abstract

Environmental law in India has historically relied on a robust framework of statutes and judicial oversight. However, a significant shift has been observed in recent years where the executive branch uses “notifications” to change existing environmental standards. While notifications are used to provide flexibility in administration but they are increasingly being used to bypass parliamentary scrutiny and weaken protective norms in favour for the industrial ease. This article examines the legal mechanisms through which environmental norms are diluted focusing on the Draft Environmental Impact Assessment (EIA) Notification and subsequent amendments. It explains that such executive actions often violate the “Non-Regression Principle” and the “Precautionary Principle” leading to a lot of environmental damage. This article concludes that judicial intervention and legislative clarity are necessary to ensure that delegated legislation does not override the fundamental right to a clean environment.

Keywords

Environmental Law, Notifications, Delegated Legislation, EIA, Dilution of Norms, Sustainable Development.

Introduction

The protection of the environment is not just a statutory obligation in India but a constitutional one as well. Under the framework of the Indian Constitution, the State is required to protect and improve the environment while citizens have the fundamental duty to protect the natural environment. To fulfill these duties, the Parliament enacted several laws, such as the Environment (Protection) Act, 1986. However, the power to create specific rules is often delegated to the executive branch specifically the Ministry of Environment, Forest and Climate Change. This executive power is exercised through “notifications.” So notifications allow the law to adapt to new scientific data or changing circumstances without needing a full legislative amendment every time. In practice, however there is a growing concern that these notifications are being used to dilute the very protections the original laws were meant to uphold. This “dilution by notification” creates a situation where the core of environmental protection is hollowed out by administrative shortcuts.

The evolution of environmental jurisprudence in India is largely a story of the judiciary stepping in to fill gaps left by the executive. From the landmark cases on the Public Trust Doctrine to the evolution of the Polluter Pays Principle, the courts have been the primary guardians of nature. But the rise of delegated legislation like rules and notifications made by the government presents a new challenge. Because these notifications do not undergo the same level of debate as an Act of Parliament, they can be used to quietly roll back protections. This article seeks to explore how the notification process, originally designed for administrative efficiency, has become a tool for systematic deregulation.

The Mechanism of Dilution through Delegated Legislation

The primary tool for environmental regulation in India is the Environmental Impact Assessment (EIA). The EIA process ensures that any large-scale project is evaluated for its potential damage to nature before it begins. Originally established to be a rigorous gatekeeping process, the EIA framework has been modified multiple times through various notifications. These changes often include exempting certain industries from public hearings, shortening the time for public consultation, and increasing the list of projects that do not require prior environmental clearance. When the government uses a notification to reduce the scope of an EIA, it essentially reduces the transparency of the development process. By labeling certain projects as “strategic” or “minor,” the executive branch bypasses the need for local communities to voice their concerns, thereby diluting the democratic and protective elements of environmental law.

Delegated legislation is a necessary part of a modern state. Parliament cannot possibly legislate on every minute detail of environmental standards such as like the exact permissible level of a specific chemical in water. Thus, it delegates this power to experts in the Ministry. However, the “General Rule” for such delegation is that the rules must stay within the boundaries of the parent Act. In the context of the Environment (Protection) Act, the goal is protection. When a notification serves to make pollution easier or monitoring harder, it arguably exceeds the mandate given by Parliament. This is known as “ultra vires” legislation. By using notifications to create “post-facto” clearances where a company can start a project illegally and then pay a fine to get it legalised later the government is using administrative tools to bypass the rule of law.

Conflict with Fundamental Legal Principles

The dilution of norms through notifications often clashes with established legal principles recognised by the Supreme Court of India. One such principle is the “Precautionary Principle” which suggests that if an action has a risk of causing harm to the public or the environment, in the absence of scientific consensus, the burden of proof falls on those taking the action. By allowing projects to proceed with minimal oversight, notifications turn this principle on its head. Furthermore, the “Doctrine of Non-Regression” is at stake. This doctrine implies that environmental protections should not be rolled back once they are established. When a notification weakens a standard that was previously in place, it violates this doctrine.

The shift toward “Ease of Doing Business” has frequently led to the streamlining of environmental clearances. While efficiency is a valid goal, it should not come at the cost of ecological integrity. The judiciary has often held that the right to a clean environment is a part of the Right to Life under Article 21. Therefore, any notification that significantly dilutes environmental safety is not just an administrative change but its a potential violation of fundamental rights. The use of notifications to bypass public hearings is particularly problematic. Public consultation is the only time local stakeholders, often poor or marginalized communities, get a say in how their land and resources are used. Removing this step through a simple government notification erodes the democratic foundation of environmental governance.

Case Studies: From EIA 2006 to the 2020 Draft

To understand the scale of dilution, one must look at the history of EIA notifications. The 1994 notification was the first formal step, which was then replaced by the 2006 notification. While the 2006 version was comprehensive, it saw hundreds of “clarifications” and “amendments” via office memorandums and smaller notifications. These small changes often exempted specific sectors, like coal mining or highway expansion, from rigorous scrutiny. The proposed 2020 Draft EIA Notification represented the peak of this trend, introducing concepts like “post-facto clearance” and reducing the time for public response. Such changes are often justified in the name of national interest, but as legal scholars note, the long-term cost of environmental degradation often outweighs the short-term economic benefit of a single project.

The role of the National Green Tribunal (NGT) is crucial here. The NGT was established to provide a specialized forum for environmental disputes. However, the executive has sometimes used notifications to alter the search and selection process for NGT members, leading to vacancies and weakened oversight. This shows that the dilution is not just about the rules on the ground, but about weakening the institutions that enforce those rules. When the referee is sidelined, the game of industrial expansion proceeds without any checks and balances.

Judicial Oversight and the Limits of Executive Power

The judiciary has not remained a silent spectator. In various cases, courts have struck down notifications that were deemed to be against the spirit of the parent Act. For example, in the context of “post-facto clearances,” the Supreme Court has previously held that such an approach is alien to environmental law. The logic is simple: you cannot assess the impact of a project that has already destroyed the local ecosystem. However, the government continues to issue new notifications that attempt to bypass these judicial rulings. This creates a “cat and mouse” game between the executive and the judiciary, leading to legal instability.

The principle of “Sustainable Development” requires a balance between economic growth and environmental protection. However, the current trend of notifications seems to tip the scale heavily toward growth. Legal scholars argue that the “Public Trust Doctrine” makes the government a trustee of natural resources. As a trustee, the government does not have the “unfettered power” to dilute norms. Every notification must be backed by scientific reasoning and a clear demonstration that it does not cause irreparable harm. Without such justification, a notification is merely an arbitrary exercise of power.

Impact on Stakeholders and the Right to Information

The impact of these notifications is most severely felt by indigenous communities and those living near industrial zones. When public participation is curtailed through executive orders, these communities lose their only platform to protect their livelihoods and health. The right to know about potential environmental hazards is a recognized legal right. When a notification reduces the transparency of the EIA report or makes it harder for the public to access project details, it directly interferes with this right.

The reliance on online-only notifications or notices published in limited languages further alienates the people most affected. For a farmer in a remote village, a notification uploaded on a central government website in English or Hindi is practically invisible. This “digital divide” in environmental governance ensures that projects are pushed through without any local resistance. The dilution of norms is thus not just a technical legal issue but it is a matter of social and environmental justice.

The Global Perspective and International Commitments

India is a signatory to several international environmental agreements, including the Paris Agreement and the Convention on Biological Diversity. These agreements require member states to progressively increase their environmental standards. Diluting norms through domestic notifications puts India at odds with its international commitments. While the government may argue that these changes are domestic administrative matters, the global nature of the climate crisis means that local dilution has global consequences.

The “Non-Regression Principle” is gaining ground internationally, with many countries adopting it into their national laws to prevent future governments from rolling back environmental protections. In India, this principle is currently supported by judicial precedents rather than explicit statutory language. Incorporating a “non-regression clause” into the Environment (Protection) Act would be a significant step in limiting the executive’s power to weaken norms via notifications.

Conclusion and the Way Forward

The use of notifications to manage environmental standards is a necessary part of modern governance, but it must not become a tool for deregulation. The current trend of diluting norms through executive orders undermines the rule of law and the constitutional right to a healthy environment. To prevent further erosion, there must be a mandatory requirement for legislative oversight of all major environmental notifications. This would ensure that any significant change in policy is debated in Parliament, where different interests can be represented.

Furthermore, the principles of sustainable development and non-regression must be integrated into the parent statutes to limit the executive’s power to weaken protections. Environmental protection should not be viewed as a hurdle to development, but as the foundation upon which lasting and equitable growth is built. Protecting the Earth requires a legal framework that is stable, transparent, and resistant to administrative convenience. The judiciary, the legislature, and civil society must work together to ensure that “notifications” serve the environment, not just the interests of industrial expansion.

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