The Supreme Court reiterated that the concept of ‘ex post facto’ Environmental Clearance’ is against the fundamental principles of environmental jurisprudence.
“environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development”, observed the bench comprising of Justices D Y Chandrachud and Ajay Rastogi.
On this basis, the SC upheld the 2016 order of National Green Tribunal setting aside a circular issued by Ministry of Environment and Forest on 14 May 2002, which envisaged the grant of post facto ECs.
The SC agreed with the NGT’s finding that the circular was “unstainable in law”. The circular allowed industries which had commenced operations without obtaining EC in terms of the Environment Impact Assessment notification of 1994 to obtain the same by an extended date in 2003.
“When the EIA notification of 1994 mandates a prior EC, it prescribes a post activity approval or an ex post facto permission. What is sought to be achieved by the administrative circular dated 14 May 2002 is contrary to the statutory notification dated 27 January 1994”, held the bench.
In this regard, the bench followed the decision of the SC in Common Cause vs Union Of India, which held that ECs cannot be granted post-facto.
The court explained the adverse effects of a retrospective EC as follows:
“The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a vigilant application of mind, besides a thorough study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed. Requirement such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus. Permitting an ex post clearance will disregard the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment.”
In this present case the Supreme Court invoked Article 142 of the Constitution of India, the court directed the defaulting industries to pay compensation.
The court directed the industry to submit the said amount with GPCB and it shall be duly utilized for restoration and remedial measures to improve the quality of the environment in the industrial area in which the industries operate.