Government pushes for post facto environment clearances while apex court disapproves

Expressing disapproval against industrial projects operating without environment clearances, a Supreme Court order states that allowing such a practice would be detrimental to the environment. While the order was in a case related to three industrial units operating in Gujarat without valid environment clearances, it effectively argues against the government’s recent proposal of giving industrial projects an opportunity to get post-facto clearances after project initiation.

This April 1 order by the Supreme Court held that an “ecologically rational outlook” must be adopted towards development and given the “social and environmental impacts of industrial activity, environment compliance must not be seen as an obstacle to development but as a measure towards achieving sustainable development and inter-generational equity.”

In the government’s latest draft of the Environment Impact Assessment (EIA) notification 2020, India’s environment ministry proposes to give a lifeline to industrial projects that start operating without a valid environment clearance (EC). 

The latest draft of the Environment Impact Assessment (EIA) notification 2020 is going to replace the EIA notification 2006 that regulates the environment clearance given by the national government for projects such as dams, mining, thermal power plants, infrastructure projects like highways, ports, airport and big construction projects. 

In it, it seeks to legitimise projects that have violated environment clearance norms by giving them a chance for post-facto approvals as long as that project is permissible in the area. Cases of violation of the norms would include those where projects either start the construction or excavation or undertake expansion without prior environment clearance. The draft was unveiled on March 12 and is open for comments and views of all stakeholders for 60 days. 

The union environment ministry has previously too pushed the concept of post-facto clearance for industries. In March 2017, it came out with a notification that provided industries with a chance to regularise projects that started construction or undertook expansion and modernisation without prior environment clearance. A similar circular was issued by the environment ministry in May 2002 as well, giving a “last and final opportunity” to errant projects. 

Though the 2017 notification was supposed to be a one-time chance it has become a fait accompli situation as, since 2017, the expert committee of the environment ministry has held at least 31 meetings for clearing hundreds of such projects that violated the environment clearance norms. 

Now, the draft EIA 2020, which seems to be creating a permanent set up for such projects to seek post-facto approval, has come under criticism from environmentalists and activists. 

Environmental lawyer Rahul Choudhary explained that the environment ministry has failed to have a clear stand on projects that violate environment clearance norms. “It has become a regular feature with the environment ministry. It had brought an order for one time chance for such projects that started without EC. It was later quashed by the National Green Tribunal. The ministry has failed to have a clear stand on this issue. Simply put, a project that starts without an EC is a violation of the Environment Protection Act 1986 but if you ask the ministry about the action taken against such violators they will have nothing to show,” Choudhary told Mongabay-India.

“This practice of the ministry to allow projects violating the law is against the ‘polluter pays principle’. Instead, it is propagating a pollute and pay principle that you come, damage and then get away by paying fine,” said Choudhary.

Read more: India’s proposed overhaul of environment clearance rules could dilute existing regulations

Allowing post facto clearances could be detrimental to the environment 

The order of the Supreme Court of India, on April 1, 2020, is significant as it upholds the principles of environmental law which conflict with the direction that the Indian government’s Ministry of Environment, Forest and Climate Change (MoEFCC) seeks to take.

“The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation,” noted a bench of Justice Dhananjaya Y. Chandrachud and Justice Ajay Rastogi. 

The SC order was in a case related to three industrial units – Alembic Pharmaceuticals Limited, United Phosphorous Limited and Unique Chemicals Limited – involved in the manufacture of pharmaceuticals and bulk drugs at the industrial area of Ankleshwar in Gujarat that operated for several years without valid environment clearances. 

The court noted that from the material placed on the record by the industries, it becomes evident that all three abdicated the responsibility of obtaining timely consents and authorisations from the GPCB (Gujarat Pollution Control Board) and the functioning of the three factories without a valid EC would have had an adverse impact on the environment, ecology and biodiversity in the area where they are located. The SC order noted that Ankleshwar in Gujarat, the area where the three industrial units are located, has consistently shown critical levels of air pollution. 

According to the Comprehensive Environmental Pollution Index (CEPI) prepared by the Central Pollution Control Board, which looked at environmental quality at 88 industrial clusters across the country, Ankleshwar has consistently shown critical levels of pollution over the years. 

The court held that while some of the environmental damage caused by the operation of the industrial units would be irreversible, however, to the extent possible, some of the damage can be corrected by undertaking measures to protect and conserve the environment. Though the apex court decided against the closure of operations of the industries, it held that it “cannot be oblivious to the environmental degradation caused by all three industries units that operated without valid ECs” and directed the three companies to deposit compensation of Rs 100 million (Rs 10 crores) each with the GPCB to be used for the purpose of restitution and restoration of the environment in the industrial area.

The bench observed a retrospective or an ex post facto environment clearance is “alien to environmental jurisprudence” because, before the issuance of an EC, the statutory notification (EIA notification 2006) warrants careful application of mind and a study into the likely consequences of a proposed activity on the environment. 

“An EC can be issued only after various stages of the decision-making process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus,” the Supreme court bench held, adding that allowing for “an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC.” 

“In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development,” the bench noted.

The SC invoked Article 142 of the Indian constitution for this order which allows it to pass an order for doing complete justice in any cause or matter pending before it.

 

Banner image: Starting an industrial project without an environment clearance is a violation of India’s environmental law, according to a recent Supreme Court order. Photo by Adityamadhav83/Wikimedia Commons.