The Ministry of Environment, Forest and Climate Change recently introduced
the Draft Environment Impact Assessment Notification 2020. The Draft
Notification intends to replace the Environment Impact Assessment Notification
2006, the Environment Impact Assessment Notification 2006 was a replacement for
the Environment Impact Assessment Notification 1994.
In the fresh draft
circulated for suggestions by the Ministry of Environment, Forest and Climate
Change, it has been proposed to grant post-facto environmental approvals if they
satisfy certain conditions, this is a reiteration of a March 2017 notification
for projects operating without clearance. The March 2017 notification was
issued after the National Green Tribunal quashed procedures laid down by the
Central Government in 2012 and 2013.
Earlier there have been instances where work on projects has commenced without
prior environmental clearances and such acts have been condoned. In 2013, The
Chennai Solidarity Group released a report that found that IIT-Madras between
2001 and 2013, had constructed over 52 acres by cutting 8100 trees and plans to
construct on another 58 acres resulting in over 10,000 trees being cut. The
IIT Madras Administration had carried out the work without any prior
Subsequently, post facto clearance to new buildings was
granted. The Koodankulam Nuclear Power Plant's Unit 1 and 2 were constructed
without any prior statutory clearance required under the Coastal Regulation Zone
Notifications 1991 and 2011. The Char Dham Pariyojana for widening the road
to Badrinath and Kedarnath involves widening of 900 Kms of roads however, the
Ministry of Road and Transport broke up the project into 53 smaller projects of
less than 100 Km each, just to evade the application of Environmental Impact
The Draft EIA notification has raised criticism from members of the general
public and from environmentalists who allege that the Government is intending to
tone down the environmental protection's rules and regulations under the garb of
the new draft. The new rules would encourage industries and companies to
commence operations without applying for clearance or being granted clearance to
commence operations as they would have an option to regularize their project by
paying the penalty amount at a later stage.
The Environment (Protection) Act, 1986, provided for environmental impact
assessment which aims to prevent projects from being approved without
appropriate oversight. The basic principle was to ensure that projects do
commence operations or be constructed without due diligence with respect to the
impact on the environment that the project may have.
Environmental assessment is the primary tool used to take into account
environmental considerations while granted environmental clearance to new
projects. The decision to grant post facto clearance is contrary to the logic
of precautionary principle
. The underlying factor of the principle is that
environmental harm is often irreparable and that it is wiser to avoid any damage
to the environment rather than to remedy it.
The precautionary principle has
four central components:
- taking preventive action in the face of uncertainty
- shifting the burden of proof to the proponents of an activity
- exploring a wide range of alternatives to possibly harmful actions
- and increasing public participation in decision making.
The grant of environmental clearance
requires application of mind besides detailed studies into the likely
consequences of a proposed activity on the environment and granting ex-post
facto clearance undermines the very purpose of it. Therefore, it is imperative
to analyze whether the decision of the Central Government to grant ex post
facto clearance will pass the judicial muster or not since the grant of ex-post
facto clearance undermines the very purpose behind the enactment of
environmental protection laws. The Supreme Court has observed that Environmental
clearance measures are based on the precautionary principle and aim to protect
the interest of the environment.
The Environment Impact Assessment Notification 1994 stipulated that:
form the date of publication of this notification in the Official Gazette,
expansion or modernization of any activity (if pollution load is to exceed the
existing one) or new project listed in Schedule I to this notification, shall
not be undertaken in any part of India unless it has been accorded environmental
clearance by the Central Government in accordance with the procedure hereinafter
specified in this notification..
Under the original Notification of 1994
there was no provision for ex-post facto environmental clearance. According to
the Supreme Court; The concept of ex post facto clearance is fundamentally at
odds with the EIA notification dated 27 January 1994.
However, the Ministry
of Environment and Forests issued a circular in 1998 which allowed the Ministry
to consider those units which are operating without environmental clearance. By
a circular issued in 2000, the Ministry of Environment and Forests directed all
State pollution boards to issue notices to all defaulting units and extended the
deadline to obtain environmental clearances to June 2001, this deadline was
subsequently extended to March 2003 through a circular issued on 14th May 2002.
The circular dated 14 May 2002 was challenged before the Supreme Court
in Alembic Pharmaceuticals Ltd. Vs. Rohit Prajapati
, wherein it was held
that Courts must take a balanced approach while holding industries to account
for having operated without environmental clearances in the past without
ordering the closure of the units. The Supreme Court applied the doctrine of
proportionality and directed the payment of damages for disobedience with
a binding legal regime
The Court awarded compensation as a facet of
preserving the environments in accordance with the precautionary principle.
However, the Supreme Court upheld the 2016 order of the National Green Tribunal
setting aside a circular issued on 14th May 2002 which provided for the grant of
ex post facto environmental clearances.
The Supreme Court in Common Cause vs. Union of India  stated that there is
no doubt that the grant of an EC cannot be taken as a mechanical exercise. It
can only be granted after due diligence and reasonable care since damage to the
environment can have a long-term impact. The Court held that grant of an ex post
facto environmental clearance would be detrimental to the environment and could
lead to irreparable degradation of the environment. According to the Supreme
Court, the concept of an ex post facto or a retrospective EC is completely alien
to environmental jurisprudence including EIA 1994 and EIA 2006.
In 2011, the Supreme Court in Lafarge Umiam Mining Pvt Ltd Vs. Union of
 had upheld the decision to grant ex-post facto clearances to
limestone mining projects in the State of Meghalaya, the Supreme Court while
upholding the ex-post facto clearances had stated that native tribal's of the
State were involved in the the decision-making process and that Ministry of
Environment & Forest had conducted due diligence with respect to the diversion
of forest land.
The Court held that the doctrine of proportionality must now be
applied to matters concerning environment. It held that sustainable development
and intergenerational equity with respect to the environment has to be balanced
with policy choices
The Court upheld the validity of ex-post
facto environmental clearances as it was satisfied with the material on record
that the Mining Company was under a misconception that the area of mining was
not forming a part of the forest area.
In Electrotherm (India) Limited vs. Patel Vipulkumar Ramjibhai
deciding the consequences of granting Environmental clearance to expansion
without a public hearing, the Court did not direct the closure of the unit. The
Supreme Court held that in order to meet the ends of justice, it was appropriate
to change the nature of the requirement of public consultation/public hearing
from pre-decisional to post-decisional.
The Supreme Court in Goel Ganga Developers India Vs. Union of India
stated that normally the Court is not inclined to grant ex-post
facto Environmental clearance, however, in the facts of that case, the Court
directed the project proponent to deposit damages of Rs. 100 crores or 10% of
the project cost, which is higher and then approach the appropriate authority
for grant of Environmental clearance. The Supreme Court in Goa Foundation vs.
Union of India had granted ex post facto clearances to several industrial
units in accordance with the circular dated 14th May 2002.
While the Supreme Court has held that ex post facto environment clearance is
"unsustainable in law"
and "in derogation of the fundamental principles of
, however, the "principle of proportionality"
held to override and allow the continuance of the industry as a fait accompli
The Supreme Court upheld the principle of proportionality over the
The Supreme Court may have upheld the decision of the
National Green Tribunal to set aside the 14th May 2002 circular, but the Court
has permitted the operation of violating units and projects based on penalties
imposed. What also needs to be considered is that it took the Supreme Court
three years to put a stay on mining in 2010 in the Lafarge Case even after the
fact that it did not possess requisite environmental clearances to mine
The High Courts have also interpreted the concept of ex post facto clearance and
the High Courts have not condoned it in cases before it. The Madras High Court
in Puducherry Environment Protection Association Vs. Union of India
that there can be no doubt that the need to comply with the requirement to
obtain environmental clearance is non-negotiable and further held that under no
circumstances can industries which pollute be allowed to operate and degrade the
environment, the High Court held that one-time relaxation granted only in cases
where the projects are otherwise in compliance with or can be made to comply
with the pollution norms is also not permissible. The Madras High Court struck
down the amendment brought about by the EIA Notification 2006.
Corporation of Greater Mumbai vs. NGT & Others, the Bombay High Court had
observed that there is no provision that grants post-facto clearance to illegal
construction within the CRZ area or area affected by mangroves.
It is imperative that environmental regulation must balance damage to the
environment with sustainable development and that grant of ex post
facto clearance should not condone the operation of activities without the grant
of environmental clearance. It needs to be realized that damage to environment
has serious consequences to our economic conditions as well. Therefore, creating
a mechanism by way of which industries can commence new projects or expand
current projects without bothering about environmental clearances undermines the
very purpose of enactment of environmental protection laws.
- Notification S.O. 804 (E) dated 14.03.2017
- City in the Forest: The Birth and Growth of Indian Institute of
Technology-Madras. Published by Chennai Solidarity Group, December 2013.
- Ex-post facto prior environmental clearances': How a nonsensical phrase
was used to flout the law. Authored by Mr. Nityanand Jayaraman. Published
in Scroll.in on July 11th, 2015.
- Ease of damaging ecology. Authored by Mr. Dinesh C Sharma. Published in
the Tribune on 31st July 2020
- The precautionary principle in environmental science. Published in
Environ Health Perspect (Volume 109(9) 2001. Authored by D Kriebel, J
Tickner, P Epstein, J Lemons, R Levins, E L Loechler, M Quinn, R Rudel, T
Schettler, and M Stoto.
- Alembic Pharmaceuticals Ltd. Vs. Rohit Prajapati [ Civil Appeal No. 1526
- The Environmental Impact Assessment Notification, 1994 [S.O. No. 80(E)
dated 28th January 1993]
- Alembic Pharmaceuticals Ltd. Vs. Rohit Prajapati [ Civil Appeal No. 1526
- (2017) 9 SCC 499
- (2011) 7 SCC 338
- (2016) 9 SCC 300
- (2005) 11 SCC 559
- LAWS (MAD)-2014-4-169
- WP No.1720/2014