An essential rap on polluters and abettors

The Supreme Court’s order stopping the Union government from retrospectively legalising development projects that did not get prior environmental clearance is a welcome affirmation of environmental law and its foundational principles. In an important order, the Court held a 2017 notification and a 2021 office memorandum of the environment ministry illegal because they violated the Environment (Protection) Act 1986, and the Environment Impact Assessment Notification of 2006. The 2017 notification gave environmental clearance to projects that had already started or had expanded operations or changed the product mix without securing prior environmental clearance. It gave a “one-time” six-month window for units that did not have environmental clearance to apply for one. In 2021, it created a standard operating procedure that allowed projects that did not avail of the six-month window to apply for regularisation. This was a violation of the law by sidetracking it or through creative interpretation.

The Court has struck down the notification and the memorandum and criticised the government for “going out of its way... to protect those who harm the environment”. It rejected the government’s argument that dismantling existing units would hurt the economy and cause unemployment. The government had also said that units seeking regularisation would have to pay a fine for the period they functioned in violation of the law. But these cannot be valid justifications for violation of the law. The government should not create a fait accompli where the violator would get away with his actions. A fine cannot compensate for the environmental cost the functioning of a unit would have caused. A compassionate or accommodative attitude would encourage others to violate the law and the government to accept the violations.

Prior environmental approval is a basic requirement under the law for any project and the principle cannot be compromised to suit the government’s or the industry’s interests. Otherwise, the idea of Environmental Impact Assessment would become redundant. Since 2017, over 100 projects have benefitted from the devices created by the government. These devices were executive orders used to undermine a law passed by parliament. The court cited its previous judgements to reiterate that ex-post-facto clearances were abhorrent to environmental law. It also mentioned fallouts of urban pollution such as the poor air quality in Delhi to point out that large-scale degradation of the environment would have drastic consequences. It has affirmed that the right to a clean environment is part of the right to life under Article 21 and the government cannot take it away from citizens or dilute it. The Court’s order will hopefully ensure that governments, environmental boards, and industries do not act together to defeat the ends of the law in the future.