The Supreme Court’s decision to strike down an eight-year-old notification issued by the Union environment ministry has put a full stop to the ex post facto clearance being given to development projects.
The notification issued by the Ministry of Environment, Forest and Climate Change (MoEFCC) in March 2017 provided a “one time” six-month window for industries to apply for green clearances even if the work had already begun or expanded beyond the permitted limit without obtaining prior clearance.
The notification had also opened doors for projects that saw changes in the plan without the required government clearance. Between March 15, 2017, and June 15, 2017, 207 projects that violated the Environment Impact Assessment (EIA) notification applied for an environmental clearance, most of them were mining and construction projects.
While declaring the notification illegal, the court also set aside an office memorandum (OM) issued by the government in 2021.
With this memo, the government introduced a standard operating procedure (SOP) for streamlining the grant of ex-post facto clearances. This SOP enabled the government to regularise violations through a process of penalty etc.
In the verdict, the court said, “We restrain the central government from issuing circulars/orders/OMs/ notifications providing for grant of ex post facto EC in any form or manner or for regularising the acts done in contravention of the EIA notification.”
This means the Union government cannot issue any further post facto clearance to any project. The verdict came because of voices raised by environmental activists and several petitions demanding the court to quash this notification.
Activists and lawyers welcomed the court verdict. Congress leader and former Union environment minister Jairam Ramesh praised the apex court order as a “damning indictment”
of the Modi government, saying domestic actions of the government on environmental protection do not match
its global talk.
However, the court’s order won’t affect the projects that have already
obtained the clearance. “We clarify that ECs already granted till date under the 2017 notification and 2021 OM shall, however, remain unaffected,” the SC order said.
This is not the first time when such notifications and OMs were issued and the court of law restrained the government. Earlier, in 2010 and 2012, OMs created a process of granting environmental clearances when EIA notification was violated.
The High Court of Jharkhand and the National Green Tribunal (NGT) found the OMs illegal. In March 2018 also, the central government issued an OM to extend the timeline for companies to submit their proposals under the 2017 notification. At that time, the MoEFCC had asked the Madras High Court for this extension.
To comply with an NGT order quashing the 2017 notification, the central government passed an OM in 2021 by which they created the SOP for granting clearances in cases of violation.
“Technically, all these were attempts to violate the EIA notification of 2006, which clearly says that for any project prior environmental clearance is mandatory before starting any construction activity,” says Rahul Choudhary, lawyer and founder trustee of New Delhi-based organisation Legal Initiative for Forest and Environment (LIFE).
The ministry had justified the notification by saying that these are stop gap arrangements to deal with the violations caused by 2010 and 2012 notifications and the purpose is to bring all the entities that are not complying with environmental regulation under the 2006 EIA notification. The ministry also said that it wants the violators to pay for the pollution.
But now all these arguments have been rejected by the court. While pronouncing the judgment, the SC invoked Article 14 and Article 21, saying in the Constitution “the right to live in a pollution-free environment is guaranteed. In fact, the 1986 Act has been enacted to give effect to this fundamental right”.
The verdict is a landmark and the development is important because today India is amongst the lowest ranked nations when it comes to quality of air, water or soil.
Take the example of the power sector. Many hubs like Korba in Chhattisgarh and the Sonbhadra-Singrauli area on the UP-MP border not only pollute air with impunity but also ruin villages when the ash dams (built to store ash from thermal power station) break and the hazardous ash fills houses and fields around.
The apex court’s order should be seen in the light of the effort other countries have made to clean their air and water. While air quality in Delhi gets worse every year, China has made significant progress in cleaning the air of Beijing.
It is a well-established fact that the negative impact of air pollution is beyond hypertension and ailments of kidney or liver; it also causes brain stroke. Researchers have found that polluted air can hamper the cognitive ability of young children.
Therefore, many European as well as Asian countries have taken steps to control pollution from various sectors by implementing strict compliance, but India still lags in curbing pollution from sectors like transport, construction, industry and power.
The SC verdict makes it clear that the woeful state of air, water and soil in India is not an isolated issue but inextricably linked to the non-compliance of environmental regulation. Steps like a 2017 notification and OMs issued over the years to facilitate ex post facto clearance have made the situation worse. They hit the health and economy of people, set a bad example and show India in a poor light globally.
Even after the Supreme Court advised the creation of a national regulator to oversee enforcement of environmental conditions and impose penalties (Lafarge judgment, 2011), there is no regulatory authority in existence. This missing gap is a real problem for implementing compliance.
Will the government mend its ways?
Since erring projects, which already received clearances based on SOP, are not affected by the SC order, past record shows authorities may still try to circumvent the law and find loopholes to allow more such projects.
Implementation will be a challenge. A lot will depend on the actions of the MoEFCC and local authorities.
(The author is a senior journalist)
Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.