Mumbai: Experts have stated that a Supreme Court ruling allowing an environmental clearance to be granted “in exceptional circumstances” after an existing industry has been established creates a situation in which a fine is being used instead of the law preventing adverse impacts. This sets a bad precedent for environmental law in the nation. IndiaSpend.
According to the Environment Impact Assessment notification from 2006, an industry must file for environmental clearance before a project can be started. The Supreme Court made a March 2022 ruling, noting that an industry must file for environmental clearance before a project can be started. This is according to the Environment Impact Assessment notification of 2006. Appeal filed by Pahwa Plastics Pvt LtdThe National Green Tribunal (NGT), for refusing to grant prior environmental clearance, issued an order to stop the operation of the chemical production unit of Pahwa plastics in Haryana.
According to the CourtWhile obtaining environmental clearance after a project might lead to fines for violators, legal experts state that this creates an opposite situation in which fines are used to compensate for environmental damages and redress these situations.
The concept of “ex-post facto clearance” allows project proponents to carry out projects without obtaining prior clearance and then apply for retroactive clearance. Experts tell us that the court’s understandings of ex post facto clearance, and the importance of environmental clearance in the Pahwa Plastics case are significantly different from what the court was able to see.
“Environmental laws are founded on the precautionary principle,” Arpitha Kodia, a postdoctoral research scholar in environmental injustice issues at the New York University School of Law said. Ex post facto makes it seem like an afterthought. It is like giving a smooth way to an industry to start working by saying that we will ex post facto give clearance if you have to apply.
On April 27, we reached out to the ministry of environment for their opinions on ex post facto clearances. We will update this story when we receive a reply.
Ex-post facto clearances can be dangerous
In 1989, the process of Environment Impact Assessment (EIA) was introduced for the first time. 1994Below the Environment (Protection) Act of 1987, which was later superseded and replaced by the Environment Impact Assessment notification in 2006.
But, both the 2006 and 1994 notifications refer to an environment impact assessment to take place prior to the start of the project. This is not the case for the project itself, said Rahul Chhary, a Supreme Court Advocate and founding member of Delhi-based Legal Initiative for Forest and Environment.
Stellina Jolly is associate professor at South Asian University in Delhi’s Faculty of Legal Studies. She stated that the prior environmental clearance was based on scientific information. The prior Environmental ClearanceThe 2006 EIA notification includes a system of screening,’scoping’ where experts ask project proponents to address any concerns, public consultation for specific projects, and an appraisal of the project.
Jolly stated that ex post facto clearance does not require the same diligence as prior clearance. “Example: If you need to change a location due to unsuitable land or conflict, it is impossible to do so because the project has already begun.”
Experts say that ex-post facto clearances are also a reason for concern.
Kodiveri said, “Public participation is one among the most important venues where dissent may be articulated, where decisions by the state can being scrutinised and the State can be informed of any harm that it is going have on communities,”
Kodiveri stated that ex post facto almost seems as if it would eliminate public participation. This change is being brought in because of the desire to speed up environmental decision making. She explained that ex post facto clearance is possible if consent is implied and it is assumed that the community is in agreement with it. “When the state decides that a project is going ahead despite public participation, the communities are left to go before the courts, which can be a much longer process.
An earlier attempt to challenge the legality ex post facto clearance
In accordance with the ministry of environment, a memorandum was issued. 2010This stated that projects constructed illegally without the necessary clearances can be applied for regularisation. This was superseded and replaced by another office memorandum. 2012This was confirmed by the Supreme Court. However, the memorandums were silent on the use of the term “ex-post facto”.
In 2014, Justice Swatanter Kumar headed the NGT bench declaredThese memoranda were deemed to be in contravention of the provisions Environmental Impact Assessment 2006.
“The court’s judgment states that the entire mandate of the prior Environmental Clearance has been not only diluted, but also completely rendered infructuous and ineffective by the issuance of these impugned Office Memoranda.” Not noted. Accordingly, the Office Memoranda, which were deemed ‘guidelines’, can be potently destructive of Notification of 2006.” The judgement was also added.
The Supreme Court and the NGT as well as other high courts have consistently challenged ex post facto legal clearances and their introduction through office memos.
But, again, in March 2017As a temporary measure, the environment ministry issued a notification to regularise any projects that were under construction or expanded without prior environmental clearance within six months. In its Press releaseThe ministry also noted that the one-time window was being opened because the NGT had in the past quashed an office memorandum that had created an ex post facto clearance for the environment.
Gleichzeitig, in einem anderen 2017 caseCommon Cause, a non-profit, filed a complaint against illegal mining activities in Odisha. The Supreme Court noted that the environment ministry must take a stand to prevent the environment and ecology being damaged. It cannot issue clarifications which help project proponents to ignore the law and harm their environment.
Similar views were also taken in the 2020 judgementAlembic Pharmaceuticals was the Supreme Court’s decision that ex post facto is “in violation of fundamental principles in environmental jurisprudence”. The court Not notedIf a project is found to have not received an environmental clearance, it will either be demolished or it will be subject to compensation under the “polluter-pays” principle. This means that pollution-causing parties are responsible for the environmental damage they cause.
In July 2021The ministry issued Standard Operating Procedures, (SOP), that allowed projects to obtain post-facto environmental clearance, but this time on a regular basis. The 2021 SOP for regularising projects without prior clearance was illegal in both spirit and letter. IndiaSpendStory PublishedNotified August 2021
This SOP is the Madurai bench at the Madras High Court. orderedAn interim stay. The court stated that the environment laws did not provide for post-facto clearances.
In the case of Electrosteels Limited, 2021The unit had obtained environmental clearance for a site different to the site where its industrial premise was located. The Supreme Court stated that ex post facto should never be granted on a frequent basis and that it should not been denied with “pedantic rigidity”.
Pahwa Plastics & the courts new logic behind expost facto clearance
2020: The petition was filed inNGT by Dastak NGO Against Synochem Organics Pvt. Ltd and 15 other chemical facilities in Haryana, including Pahwa Plastics, that were manufacturing formaldehyde (a flammable chemical) without the environmental clearance (EC), and the requisite safeguards. In January 2021, the NGT ordered that these 15 chemical units in Haryana be closed because they were violating environmental norms.
A civil appeal was filed in order to challenge the NGT Order. Pahwa PlasticsAugust 2021 at the Supreme Court. On March 25, 2022 the Supreme Court overturned an NGT order and declared that the manufacturing units which generated employment for around 8,000 people and contributed to economic growth could not be closed.
Krithika Dinesh (an independent researcher and lawyer in the environment) stated that the logic in the Pahwa Plastics case only deepens the gap between environmental and livelihood issues. “Courts need to be more creative in addressing the livelihood issue and hold companies accountable for any environmental violations they may have committed.”
Further, the court orderedThe applicants should be permitted to operate the units “subjected to payment of any charges, if applicable”.
“We are again seeing a situation in which a factory has been set up and has created livelihoods. It is very difficult to go back. Kodiveri said that the court uses a compensatory method of regulatory enforcement. This is similar to the “polluter pays” approach. The project is already polluting and therefore requires compensating.
In 1987, the author was in the M. C. Mehta vs. The Union of India,The Supreme Court had ruled that life and public health are more important than unemployment and loss in revenue.
Kodiveri said that there was an inverted situation where the dominant belief that one can compensate environmental damage has been used to remedy these highly charged circumstances. The Compensatory Afforestation Act states that deforestation is not a problem and that we can still create forests elsewhere. That dynamic is now influencing how environmental laws and regulations are implemented.”
Choudhary said that ex-post facto clearances may be granted in exceptional circumstances. However, the court does not determine how one circumstance is different.
Safe environment is a fundamental right
In a2013 caseThe Supreme Court, while denying ex post facto clearance to the Association of Environment Protection against the State of Kerala, stated that a project’s start without obtaining prior environmental clearance is a violation of the fundamental rights of the local people under Article 21 of the Indian Constitution.
Last October 2021 the United Nations adopted a resolutionDeclaring the right to a healthy environment as a human rights. The World Health Organisation had earlier Not notedAround 13.7 million deaths worldwide each year are due to environmental risks like air pollution and chemical exposure.
But in Recent OrdersChoudhary said that the impact of not having environmental clearance is mostly seen in the narrower sense of impact on pollution and not on livelihood.
Kodiveri said that the right of a healthy and safe environment is an integral part of right-to-life. However, it has not been used in many cases being brought by communities or public interest litigation. “But, with the UN resolution regarding the right to a health environment, there is a lot more impetus for social movements to return to this particular right.”
(Harshul GabaIndiaSpend intern Alicia contributed to this article.
We are open to receiving feedback. Please write to [email protected]. We reserve the rights to correct grammar and language in responses.