MoEF&CC, Govt. of India exempts projects requiring an Environmental Clearance from provisions of Consent to Establish under the Water and Air Acts. Need to revisit Standard Operating Procedures.
Abstract
The Government of India has exempted all industrial plants having Pollution Index score up to 20 and all industrial plants which have obtained prior environmental clearance from the provisions of Consent to Establish.
Consent to establish has not been done away with but the E.C. would be issued in respect to conditions related to consent to establish also. This has provided that activities with a valid prior environmental clearance, also issued to include the Consent to Establish, would be exempt from taking a separate consent under section 25(1) of the Water act and section 21(1) of the Air Act from the State Pollution Control Boards/Pollution Control Committees and that Industrial plants having a pollution index of less than 20, as classified, will be exempt both from consent to establish and consent to operate provided that they inform the PCB’s/PCC’s. Instead, conditions will be stipulated in the E.C. itself.
The MoEF & CC has issued a Standard Operating Procedure on 14-11-2024 and also automated the entire work flow for appraising proposals which are exempt from obtaining CTE on 8-10-2025. Procedures have been prescribed for inviting comments from the concerned PCB /PCC on the Terms of Reference provided to the project proponent or on the proposal if no T.O.R. is applicable. A deemed to have no objection clause after 30 days has also been introduced along with a fee to be paid in respect of consent. The MoEF and CC has also published a “Manual for implementation of Provisions of Office Memorandum dated 14-1-2025, regarding seeking comments from SPCBs and E.C. proposals”
The process of inviting comments from the concerned PCB /PCC on the full Terms of Reference provided to the project proponent or on the proposal if no T.O.R. is applicable appears to be extra jurisdictional. The Pollution Control Boards could have been asked to give their comments only on areas covered under provisions of section 17 of the Water and Air Acts and related to consent to establish. Seeking comments from the PCB on the suitability of the site is also against the provisions of the Air and Water Acts. For matters related to the suitability of a site, the State Board is answerable to the State Government as per section 17(n) and 17(h) of the Acts. The EIA notification of 2006 stipulates that clearances from other departments shall not be a prerequisite. Seeking the clearance from the PCB/PCC may need to be examined in this light also.
The Office Memorandum dated 14-1-2025 also makes a provision of payment of fee. Since the provision of Consent fee in the Acts, mandates that the Consent application form shall be accompanied by the fee as may be prescribed”, there appears to be need to legalize the fee through subordinate legislation. No separate application is being made for consent to Establish which in itself has been declared as an exempted procedure. Soliciting a Consent fee may need to be examined.
Comments from the Pollution Control Boards are expected to be provided within 30 days of receipt of fee being uploaded on the portal. Non receipt of comments within the prescribed time frames would be understood to mean that the Board has no comments and the SEIAA/MOEF and CC would be free to take suitable decisions on merit. This needs to be dovetailed to similar provisions in the Acts where a committee has been constituted to decide delay cases.
The Exemption and Procedures
Section 21(1) of the Water (Prevention and Control of Pollution) Act, 1974, provides that no person shall, without the previous consent of the State Pollution Control Board, establish any industry, operation or process, or any treatment and disposal system, or any extension or addition thereto, which is likely to discharge sewage or trade effluent into a stream, well, sewer or on land.
This has been amended by the amendment of 2024 in the Water (Prevention and Control of Pollution Act) 1974, which now allows the Central Government, after duly consulting with the Central Pollution Control Board, to exempt certain categories of industrial plants from the provisions of this subsection.
Similarly, the Air (Prevention and Control of Pollution) Act, 1981 provides under Section 21(1) that no person shall establish or operate any industrial plant in an air pollution control area unless the previous consent of the State Pollution Control Board has been obtained.
The Jan Vishwas Act of 2023 amends the Air Act, 1981, and makes a provision that the Central Government, in consultation with the Central Pollution Control Board, by notification in the official gazette, exempt certain categories of industrial plants from the application of the provisions of this subsection.
It has been provided that:
(A) In section 21, for sub-section (1), the following shall be substituted, namely:— “(1) No person shall establish or operate any industrial plant in an air pollution control area unless the previous consent of the State Board has been obtained in pursuance of an application made by such person in accordance with the provisions of this section: Provided that the Central Government may in consultation with the Central Pollution Control Board, by notification in the Official Gazette, exempt certain categories of industrial plants from the application of the provisions of this sub-section.”.
Subsequent to these enabling provisions which had empowered the Central Government to exempt certain classes of Industries from the application of provisions of consent as above, the Central Government through notification numbers G.S.R. 702(E), dated 12-11-2024 and G.S.R. 703(E), dated 12-11-2024 has exempted the following category of industries from the application of subsection 25 (1) of the Water Act and Section 21(1) of the Air Act.
- All industrial plants having Pollution Index score up to 20, as listed in the Schedule to the notifications 702(E) and 703(E) respectively, subject to the condition that such plants shall inform in writing to the State Pollution Control Board or the Pollution Control Committee.
- All industrial plants which have obtained prior environmental clearance, as per the notification of the Government of India in the establish Ministry of Environment, Forest and Climate Change, under S.O. 1533(E) dated 14-09-2006 issued under the Environment (Protection) Act1986, in respect of previous consent to establish such plant.
It was also directed that the MoEF and CC may issue necessary standard operating procedures for streamlining the implementation of the exemptions, as deemed appropriate.
As understood that the above exemptions would mean that:
- Consent to establish has not been done away with but the E.C. would be issued in respect to consent to establish also without a separate application for CTE.
- Activities with a valid prior environmental clearance, also issued to include the Consent to Establish, would be exempt from taking a separate consent under section 25(1) of the Water Act and section 21(1) of the Air Act from the State Pollution Control Boards/Pollution Control Committees.
- Industrial plants having a pollution index of less than 20, as classified, will be exempt both from consent to establish and consent to operate provided that they inform the PCB’s/PCC’s.
- The MoEF & CC a shall issue standard operating procedures to streamline the implementation of the notifications.
Consequently, the MoEF & CC issued a Standard Operating Procedure vide F. No. Q-15012/2/2022-CPW-Part(I)/E-240741, dated 14-11-2024.
Procedures have been laid down with regard to the reporting to be done by the White Category of industries (less than 20 Pollution Index) which have been exempted from consent to establish and consent to operate. They have been directed to ensure that they comply with all existing rules and regulations and restricted from carrying out activities other than there mentioned in these reports. They are exempt from payment of consent fee.
The category of industries exempted from obtaining the consent to establish separately because of needing an environmental clearance, will have to obtain E.C. from the competent authority, and the condition of CTE will be integrated in the condition of E.C. itself. The application for environmental clearance shall be forwarded by the competent authority to the concerned State Pollution Control Board, who will forward its comments within the time frame specified. (Not less than 30 days). The Pollution Control Board may undertake site inspections or call for information before sending its comments. It has been provided that the requisite consent fee has to be paid within 30 days of issue of E.C. or attract the provisions of late fee. The E.C. will become operational only after payment consent fee.
It is also provided that, all such industries/activities shall have to obtain the consent to operate separately as per rules and Industries/activities not covered under the exemption shall have to avail CTE and CTO as per the prevailing rules and regulations.
The Ministry has automated the entire work flow for appraising proposals which are exempt from obtaining CTE through F. No. Q-15012/2/2022-CPW (Part-I)/E-231973, dated 8-10-2025. All E.C. proposals are to be dealt as per the provisions in the PARIVESH Portal. The MoEF and CC has also published a “Manual for implementation of Provisions of Office Memorandum dated 14-1-2025, regarding seeking comments from SPCBs and E.C. proposals”.
- Another subsequent OM issued on 25-11-2025, issued by the MoEF & CC clarifies that the provisions of the Office Memoranda dated 14-01-2025 and 08-10-2025 shall apply only to those projects/activities where obtaining both E.C. and CTE were mandatory prior to 12-11-24. Projects which did not require CTE before 12-11-24 but which have been referred to the concerned PCB’s/PCCs for fees and comments on CTE shall be processed by the SEIAA without waiting for such fees or comments.
Cases which required a CTE and where an Environmental Clearance was granted or accepted before 31-01-26 by the Ministry/SEIAA between 12-11-24 and 31-01-26 (or the grant of E.C. whichever was earlier) were required to seek environmental safeguards from the concerned PCB/PCC within 30 days of 31-01-26 or the date of grant of E.C. whichever was earlier.
The O.M. dated 14-01-2025 issued by the MoEF&CC provides stipulations on streamlining the implementation of the provisions of the exemption from CTE. It prescribes a process of inviting comments from the concerned PCB /PCC on the Terms of Reference provided to the project proponent or on the proposal if no T.O.R. is applicable. This may appear extra jurisdictional. The Pollution Control Boards could be asked to give their comments only on areas covered under provisions of section 17 of the Water and Air Acts and related to consent to establish. For matters related to the suitability of a site, the State Board is answerable to the State Government (17n and 17h of the Water and Air Acts respectively).
The Office Memorandum dated 14-1-2025 also makes a provision of payment of fee. Here also since the provisions of Consent fee mandates that the Consent application from shall be accompanied by the fee as may be prescribed”, there appears to be need to legalize the fee through subordinate legislation. No separate application is being made for consent to Establish
Comments from the Pollution Control Boards are expected to be provided within 30 days of receipt of fee being uploaded on the portal. Non receipt of comments within the prescribed time frames would be understood to mean that the Board has no comments and the SEIAA/MOEF and CC would be free to take suitable decisions on merit. This needs to be dovetailed to similar provisions in the Acts where a Committee has been constituted to decide delay cases. (Guidelines issued by MoEF&CC https://www.wealthywaste.com/guidelines-as-on-2026-relating-to-grant-refusal-or-cancellation-of-consent-under-the-air-prevention-and-control-of-pollution-act-1981-as-amended and https://www.wealthywaste.com/guidelines-as-on-2026-relating-to-grant-refusal-or-cancellation-of-consent-under-the-water-prevention-and-control-of-pollution-act-1974-as-amended.)