SC bars govt from giving post-facto environmental clearance for projects

The Supreme Court has restrained the Centre from granting ex-post facto environmental clearance to mining and other development projects or regularising actions that contravene the 2006 Environment Impact Assessment (EIA) notification.
The EIA notification 2006 was designed to ensure that developmental projects are assessed for their potential environmental impacts before approval. Ex-post facto clearance refers to the granting of approval or ratification of an action after it has already been completed.
The apex on Friday court ruled that the 'conservation of environment and its improvement is an essential part of the concept of development'.
A bench of Justices Abhay S. Oka and Ujjal Bhuyan struck down the ex-post facto environmental clearance (EC) regime under the Environment (Protection) Act, 1986. The court held that the 2017 notification and the 2021 office memorandum (OM) issued by the Ministry of Environment, Forest and Climate Change (MoEFCC) were illegal, arbitrary, and violative of Articles 14 (equality before law) and 21 (protection of life and personal liberty) of the Constitution.
Under the EIA Notification, 2006, prior environmental clearance is mandatory for certain categories of industrial and infrastructure projects. However, the MoEFCC issued a notification in 2017 allowing entities to apply for ex-post facto ECs. Further, in 2021, the ministry issued a Standard Operating Procedure (SOP) via an OM. This SOP allowed for conditional clearance of ongoing or completed projects that had bypassed prior EC requirements.
These measures were challenged by environmental groups and civil society organisations, including the petitioner in this case, Vanashakti. The court held that the grant of ex-post facto clearance was not permitted under the 2017 notification for the projects and activities which were commenced or continued after March 14, 2017. It further said that the window, which was initially for six months, was eventually extended till completion of 30 days from March 14, 2018.
Therefore, the 2021 OM is brought in to do something which was not permissible under the 2017 notification, the law laid down by this court, and the solemn undertaking given by the central government to the Madras High Court, the court said.
'We must deprecate such effort on the part of the central government,' the court held.
The court said the concept of ex-post facto EC is alien to Indian environmental law and contrary to earlier rulings (Common Cause v. Union of India, Alembic Pharmaceuticals v. Rohit Prajapati).
The court said even the central government must protect and improve the natural environment.
'Can there be development at the cost of environment? Conservation of environment and its improvement is an essential part of the concept of development. Therefore, going out of the way by issuing such OMs to protect those who have caused harm to the environment has to be deprecated by the Courts which are under a constitutional and statutory mandate to uphold the fundamental right under Article 21 and to protect the environment. In fact, the courts should come down heavily on such attempts,' the order said.
Granting EC retrospectively undermines the precautionary principle and defeats the very purpose of environmental assessments, the court said.

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