Why Supreme Court struck down the Centre's orders on retrospective green clearances
The Supreme Court on Friday (May 16) 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. The judgment followed a clutch of petitions challenging the notification.
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.
In March 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.
Notably, a prior clearance is mandatory under the EIA notification, 2006, to scrutinise a project's impact on the environment, natural resources, human health and social infrastructure (such as schools and hospitals). The scrutiny involves a multi-stage process that includes project screening, impact assessment, public hearing and the final recommendation of sector-specific expert appraisal committees. The environment ministry can either grant or reject a final clearance, based on the recommendations of the expert committees.
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. The notification stated that state authorities and pollution control boards would act against the violations under the Environment Protection Act, 1986, even as the cases were taken up for clearance.
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.
An expert appraisal committee was constituted under S R Wate, former director of the National Environmental Engineering Research Institute (NEERI), Nagpur, to appraise the cases of violations. The committee met 47 times between 2017 and 2021. In a July 2021 office memorandum, the Centre also issued an SOP for 'identification and handling' violation cases, in compliance with a National Green Tribunal order.
Supreme Court's rationale
The bench of Justice Abhay S Oka and Justice Ujjay Bhuyan 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 (right to protection of life and personal liberty).
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 bench cited examples of dangerous pollution levels in Delhi to point out that there are drastic consequences of large-scale destruction of the environment on human lives.
Crucially, the SC bench also reminded the Centre of the undertaking it had given during a past legal challenge to the 2017 notification before the Madras High Court. The High Court had refused to interfere with or stay the notification and noted that industries contributing to the economy could not be closed because they failed to obtain an environmental clearance.
However, the HC's order was based on the Centre's undertaking that the 2017 notification was strictly a one-time measure. In fact, the SC held that even a one-time relaxation was illegal as it amounted to infringing on the right to live in a pollution-free environment.
The 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.
It came down heavily on the Centre for violating these orders through the 2021 OM, which essentially regularised the illegality of commencing a project construction without prior clearance. This, the court said, was ex-post facto clearance in substance and a violation of the past orders.
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 SC bench said that the Centre had attempted to bring in the ex-post facto or retrospective by 'craftily drafting the SOP'. It added that 'cleverly', the words ex-post facto were not used, but effectively it meant the same. More importantly, it had also ordered the Centre not to introduce any version of such orders in the future.
An award-winning journalist with 14 years of experience, Nikhil Ghanekar is an Assistant Editor with the National Bureau [Government] of The Indian Express in New Delhi. He primarily covers environmental policy matters which involve tracking key decisions and inner workings of the Ministry of Environment, Forest and Climate Change. He also covers the functioning of the National Green Tribunal and writes on the impact of environmental policies on wildlife conservation, forestry issues and climate change.
Nikhil joined The Indian Express in 2024. Originally from Mumbai, he has worked in publications such as Tehelka, Hindustan Times, DNA Newspaper, News18 and Indiaspend. In the past 14 years, he has written on a range of subjects such as sports, current affairs, civic issues, city centric environment news, central government policies and politics. ... Read More
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