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Date of judgment: 13/10/2017
Court: High Court of Madras
Introduction:
Prior-environment clearance is an integral principle imbibed into the provisions of the Environment Impact Assessment Notification, 2006 (EIA). Contravention of the said mandate can result in the imposition of fines and even closure of the unit. Nonetheless, the Centre has often had to issue notifications that provide scope for ex-post-facto clearance.
On 14/03/2017, the Union of India published a notification permitting ex-post-facto environment clearance for project proponents who hadn’t earlier obtained necessary clearance under the Environmental Protection Act, 1986 (EPA), or the EIA notification of 2006. The notification was passed under Section 3 of the EPA, and Rule of the Environment Protection Rules, 1986 (EPR).
The Government has been issuing multiple notifications since 1994, enabling violating project proponents to rectify their infringement and this was their 5th chance to do so. The petitioners thus sought the striking down of the 2017 notification on the ground that it resulted in a lackluster attitude towards public hearing, scoping under EIA, and the precautionary principle.
Views of the Division Bench:
The petitioners contended that prior-clearance under the EPA, EPR, and EIA was mandatory whereas the impugned notification weakened the stance by permitting clearances, during or after the completion of a project. The respondents rebutted by holding that the notification had been misinterpreted as ex-post-facto clearance would only get sanctioned by an Expert Appraisal Committee. The Committee would scrutinize the regulatory compliance, and based on its findings, either affirm and continue assessments or penalize under Section 19 of the EPA.
Reference was made to paragraphs 3, 4 & 5 of the impugned notification that supported their claims. Paragraph 3 prescribed action against the defaulting unit under section 19 and barred their operation until necessary clearance was obtained. Paragraph 4 held that in cases of violations, closure of the project would be recommended in addition to the other penalties. Whereas paragraph 5 stated that a unit whose project had been affirmed, would be made to undertake Environment Impact Assessment and an Environment Management Plan in addition to a robust analysis and assessment of data.
The Court also found that despite the lack of express declaration of a public hearing, the same was a part and parcel of the EIA compliance mechanism. The respondents also submitted that the impugned notification was only a one-time measure and there would be no recurring infringements of the precautionary principle. A single-judge bench decision of the Madras High Court that permitted ex-post-facto clearance was raised. (M/s.Hyundai Motors India Ltd. Vs. Union of India (2015). However, Justice Sundar rejected the precedent raised as it derived its principle from another case of a Constitution bench in Life Insurance Corporation of India Vs. Escorts Ltd., (1986) 1 SCC 264, which enlisted another principle. The said judgment clearly articulated that if a statute provided for prior consent, then ex-post-facto would not be an option. Correspondingly, the argument raised by the respondents would not hold ground as the Parliament had clearly expressed its intent through wordings in the EPA and the EPR.
The respondents insisted on the fact that this was merely a one-time adjustment that had been officiated to balance development and environment. They even questioned the locus of the petitioners but the Court decided to not consider the same due to the implications of the matter. Justice Sundar was satisfied with the view taken by the respondents and since it was a one-time measure that had a public hearing, he opined to dismiss the petition.
Hon’ble Justice Indira Banerjee, the erstwhile Chief Justice of the High Court of Madras, agreed with the views of Justice Sundar. The learned judge recognized that the primary ground for displeasure against the impugned notification was that of closure only after a hearing by the Expert Committee. The roots of EPA were traced back to the Stockholm Conference, 1972 backed by the objective of combatting environmental degradation and pollution.
Attention was also called upon to Office Memoranda issued on 12/12/2012 & 27/06/2013 by the Centre. These memoranda entailed clearance for projects that had flouted provisions under the EPA and EIA. However, the High Court of Jharkhand struck down Paragraph 5 on the grounds of them being ultra vires the Act in Hindustan Copper Limited v. Union of India (2014). Paragraph 5 directed violating parties to submit a written statement that they would not repeat the same offense and called upon the state to initiate action. [1] Nonetheless, the National Green Tribunal struck down the memoranda by an order dated 07/07/2015 as it overrode the provisions of the 2006 EIA Notification.
The purpose behind successive notifications was traced to the catena of requests received by the Ministry of Environment, Forest & Climate Change (MoEF) as well as the State Environment Impact Assessment Authorities (SEIAA). Multiple proposals were received under the 2006 EIA Notification to grant clearance for works that had already commenced or were completed without due environment clearance. MoEFC and SEIAA deemed it to be best to scrutinize and grant environmental clearances rather than leaving them unchecked and unregulated. Thus, the Union brought about mechanisms to evaluate and consider instances where there had been a violation of laws and subsequently take measures to deter future violations.
Subsequent liability for the damage caused could be recovered from the violator through provisions of the EPA. Moreover, through this principle of “polluter pays”, the Centre would be accommodating a measure for protecting the environment as held in Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212. The impugned notification had been issued under Section 3 of the EPA while also following Rule 5(3)(d) of the EPR and wasn’t without authority. The notification mandated a new project as well as modernizations and renovations to obtain ex-post environment clearance under the 2006 EIA Notification while additionally providing for a procedure in case of violation.
Decision:
The learned Judges upheld that compliance with prior environmental clearance was non-negotiable and could not be vitiated. Its stringent compliance was also integral to protect future generations. However, the question before the court was whether an establishment that provided jobs to hundreds and contributed to the economy ought to be shut down merely because it failed to obtain prior environmental clearance. This was answered in the negative as the impugned notification was a one-time relaxation that would call upon industries to comply with pollution norms.
The Court emphasized that it was essential to protect the environment while also taking into account the economy and the livelihood of its citizens. The notification under dispute was thus held to have not violated environmental purity but rather paved a way to secure due compliance by industries and projects that had earlier failed to do so. This was further strengthened with the influx of multiple regulatory conditions in addition to the shift to the principle of polluter pays. The writ petition was thus disposed of in favor of the Union of India.
Conclusion:
The Division Bench of the High Court upheld the validity of the notification as it provided a framework for individuals who failed to obtain prior environmental compliance while also paying damages for the same. The respondents reaffirmed that the notification was a one-time exception whereas multiple notifications permitting the same had been issued earlier. When mechanisms such as these are issued on a regular basis, they tend to undermine the value of prior-environmental clearance under EIA 2006. Furthermore, the Draft EIA Notification of 2020 may strip the concept of prior-environmental clearance by permitting ex-post-facto clearance at an overarching scale. The impugned notification in this matter was restricted to a limited period to correct the violation whereas the Notification of 2020 if implemented in its essence, provides individuals with the freedom of opting for clearance after the harm has already been done.
[1] South Asia Network on Dams Rivers and People, NGT Quashes MoEF’s Office Memoranda on violating projects: A large number of irrigation projects of Maharashtra & Karnataka affected, (08 July 2015), https://sandrp.in/2015/07/08/5276/.
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