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Whether Post-Facto Environmental Clearance under Draft EIA Notification 2020 legally permissible?

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.[1] 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.[2] The IIT Madras Administration had carried out the work without any prior environmental clearance.

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.[3] 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 Assessment.[4]

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:
  1. taking preventive action in the face of uncertainty
  2. shifting the burden of proof to the proponents of an activity
  3. exploring a wide range of alternatives to possibly harmful actions
  4. and increasing public participation in decision making.[5]

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.[6]

The Environment Impact Assessment Notification 1994 stipulated that …on and 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.[7].

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.[8]

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 [9], 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 [10] 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 India [11] 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 [12] while 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[13] had 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[14] 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 environmental jurisprudence, however, the "principle of proportionality" has held to override and allow the continuance of the industry as a fait accompli. The Supreme Court upheld the principle of proportionality over the precautionary principle.

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 limestone.

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[15] held 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.

In, Municipal Corporation of Greater Mumbai vs. NGT & Others[16], 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.

End-Notes:
  1. Notification S.O. 804 (E) dated 14.03.2017
  2. City in the Forest: The Birth and Growth of Indian Institute of Technology-Madras. Published by Chennai Solidarity Group, December 2013.
  3. 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.
  4. Ease of damaging ecology. Authored by Mr. Dinesh C Sharma. Published in the Tribune on 31st July 2020
  5. 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.
  6. Alembic Pharmaceuticals Ltd. Vs. Rohit Prajapati [ Civil Appeal No. 1526 of 2016]
  7. The Environmental Impact Assessment Notification, 1994 [S.O. No. 80(E) dated 28th January 1993]
  8. Alembic Pharmaceuticals Ltd. Vs. Rohit Prajapati [ Civil Appeal No. 1526 of 2016]
  9. Ibid
  10. (2017) 9 SCC 499
  11. (2011) 7 SCC 338
  12. (2016) 9 SCC 300
  13. CA/10854/2016
  14. (2005) 11 SCC 559
  15. LAWS (MAD)-2014-4-169
  16. WP No.1720/2014

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