In the context of a recent Supreme Court judgement, discuss the status of ex-post-facto environmental clearance for industrial establishments in India.
The Supreme Court had struck down and held illegal a 2017 notification of the Ministry of Environment, Forest and Climate Change (MoEF&CC), which introduced a regime of granting projects clearances ex-post facto – after work had already begun. Additionally, the SC judgment set aside a 2021 office memorandum, which introduced a standard operating procedure for streamlining the grant of post facto clearances. The judgment also restrained the Centre from issuing similar notifications or office orders for regularising acts violating the Environment Impact Assessment (EIA) notification of 2006.
Environmental Impact Assessment (EIA):
- The UN Environment Programme (UNEP) defines EIA to be an analytical process that systematically examines the possible environmental consequences of the implementation of a given activity (project).
- It is aimed to ensure that the environmental implications of decisions related to a given activity are taken into account before the decisions are made.
- In India, there are 39 categories of projects that require an environmental clearance (EC) process and are subject to EIA.
- The EIA notification was first formulated in India in 1994, under the Environment (Protection) Act 1986.
- The Act made environmental clearance mandatory for expansion, modernisation of existing projects, and for the establishment of new projects.
- Stages:
- The environmental clearance process comprises four stages, namely, Screening; Scoping; Public Consultation and Appraisal.
- The Expert Appraisal Committee (EAC) is a multi-disciplinary sectoral appraisal committee, whose primary role is to give recommendations to the MoEFCC on project proposals after considering the potential impacts of the project.
- Based on these recommendations, the MoEFCC either rejects the proposal or grants a clearance with conditions which would mitigate the impacts or compensate for the same.
- Rules:
- To decentralize the process of project clearance, the EIA Notification 2006 has categorized the projects into Category ‘A’ and Category ‘B’ based on their impact potential.
- Draft EIA Notification 2020: The new draft aims to increase transparency and streamline compliance by incorporating multiple notifications, amendments, circulars, court and tribunal directions, and so on.
2017 EIA Notification:
- In 2017, the MoEF&CC issued a notification providing a “one-time” six-month window for industries to apply for environmental clearance. It was applicable if they had begun operations, expanded production beyond what they were permitted or changed their product mix without obtaining prior clearance.
- The Centre’s core rationale behind the 2017 notification was that rather than leaving cases of violations “unregulated and unchecked”, they should be brought under the compliance net at the earliest.
- Secondly, the Centre argued that making violators pay for remediation and pollution would take away the economic benefit derived from the violation of laws.
- It also stated that irrespective of the category (size, etc.), all cases would be appraised at the central level, and the appraisal would proceed only if the activity was permissible on the site it is situated at, or it would face closure.
SC Judgement’s rationale on the EIA Notification:
- The SC rapped the Centre for issuing OMs “to protect those who have caused harm to the environment”, and questioned whether development can happen at the cost of the environment.
- It said that the Centre went out of its way to protect those causing harm to the environment, and that the court cannot allow such attempts, as it has the constitutional and statutory mandate to uphold Article 21.
- In the past, the apex court has broadened the scope of Article 21 to include the right to a healthy and pollution-free environment. It held the 2017 notification and 2021 OM in violation of Article 21 and Article 14 (right to equality before law), as the OM was for all project proponents who “were fully aware” of the consequences of violations.
- The SC bench cited two past judgments – Common Cause v. Union of India (2017) and Alembic Pharmaceuticals v. Rohit Prajapati (2020) – to reaffirm that ex-post facto clearances were alien to environmental law.
- In the Alembic case, a bench of Justice Chandrachud and Justice Ajay Rastogi had said that the concept of an ex-post facto was in derogation of fundamental principles of environmental jurisprudence, and an anathema to the EIA notification.
The dilemma between conservation of environment and development of the economy has been in the forefront since the dawn of the Industrial revolution. While we have not yet arrived at a universal solution, we have made significant developments through various international and national initiatives like Sustainable Development Goals, Paris Agreement, NDCs, Panchamritha, CAMPA, NAPCC, EIA etc. Therefore it is our legal and moral responsibility to uphold the spirit of nature and lead a path of sustainable development.
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