The Supreme Court observed that ex post facto green clearances are possible even after considering all environmental impacts. It also overturned an order by the National Green Tribunal regarding the closure of industries without prior approval.
Ex post facto Environmental clearance refers to the approval of an industry or project that has begun operating without obtaining the green clearance or disclosing the likely environmental impacts.
Justices Indira Banerjee, JK Maheshwari and a bench of them observed Friday that the Environment (Protection) Act (86) did not explicitly prohibit the grant ex post facto environmental clearance.
Ex post facto approval should not be granted in routine circumstances, but only in exceptional cases taking into consideration all relevant environmental factors. If the negative consequences of denial ex post facto approval are greater than the benefits of regularisation by granting ex postfacto approval and the establishment in question otherwise conforms with the requisite pollution norms then ex postfacto approval should be granted in accordance to law and in strict conformity with applicable rules, regulations, and/or notifications.
The government may penalize the deviant industry by imposing a heavy penalty on the principle that polluter pays. It also stated that the cost of restoration to the environment may be recovered from it. However, it added that it should be considered whether the unit contributes to the economy of the country as well as providing livelihood for hundreds of people.
Pahwa Plastics Pvt. appealed to the top court. Ltd against an NGT Order that said that firms manufacturing units which didn’t have prior environmental clearance would not be allowed to operate.
Jairam Ramesh, a former environment minister and Congress leader, tweeted that the Supreme Court had ruled that ex post facto environmental clearance should only be granted in exceptional circumstances. Even so, I am concerned about what message those who disregard laws could take from this precedent.
The problem is that the project could state in every instance of violation that it is an exception. Exceptional circumstances will not be an objective criterion, and it will open the floodgates to misuse. Decision making will be free to choose and make decisions at your own discretion. This will negate the basic basis of environmental law, Ritwick Dutta, an environmental lawyer, said.
People familiar with the matter said that the environment ministry will now approve all requests for clearances for projects that have started construction on or operations on forest land.
According to a March 22 letter sent to all regional offices, proposals for the use of forest land for other than forest purposes that violate the Forest Conservation Act will be reviewed at the ministry’s level.
All such proposals will be reviewed and processed by the regional offices, and then forwarded to the ministry with comments or recommendations.
The ministry’s forest advisory panel discussed the issue of these exceptional approvals on November 26th last year. The panel decided that even though the violation is less than 40 hectares, it should be referred to environment ministry.
We have been receiving many proposals for ex post facto clearings. An official from the ministry’s forest conservation division said that we have decided that all such cases must be decided by the Centre.
Although the government does not usually encourage such requests, it will grant forest clearances in exceptional circumstances.
Ex post facto requests are often not able to be rejected. The official stated that they must be approved with appropriate sanctions. All regional offices were asked to report violations to us.
The clarification by the environment ministry reconciles and reorganizes institutional powers to make decisions on projects for post-facto forest clearances. Kanchi Kohli (legal researcher at the Centre for Policy Research), a think tank, said that guidelines say the power rests on the state governments and the 2003 rules give the environmental ministry the power to take legal action against violations.
She said that the new interpretations give the union environment ministry the power to interpret the regional offices’ recommendations. It is the union ministry that will review and examine projects in violation the forest conservation act, determine encroachments, and consider cases for regularization.
