1987: The Supreme Court emphasized the importance of life, health, and ecology over loss of income and unemployment in the case of M.C. Mehta against Union of India [(1987) 4 SCC 463]. The apex court appears now to have reaffirmed this view three decades later, with subtle exceptions to its application. The court ruled that no technical irregularity should be a hindrance to the functioning of establishments that contribute to the economy and provide livelihoods, regardless of whether or not they actually cause pollution. However, the technical irregularity is the failure of a business to obtain prior Environmental Clearance (EC) in accordance to the provisions in Environmental Impact Assessment Notification, 2006. This legal mandate enshrines various environmental principles that the court has repeatedly emphasized over the years.
The latest judgment is in the case M/S Pahwa Plastics Pvt. Ltd. & Anr. Vs. Dastak Ngo & Ors [Civil Appeal No. 4795 of 2021]Two small, medium and micro enterprises involved in the production of formaldehyde, an organ chemical, filed an appeal. Although the appellants had complied the mandates of the Water (Prevention and Control of Pollution) Act of 1974 and the Air (Prevention and Control of Pollution) Act of 1981, they had not received an EC as neither the Haryana State Pollution Control Board (HSPCB) was certain that an EC was required in this case.
The process of EIA has been established under the Environment (Protection) Act, 1986 to give effect to the precautionary principle. An action that poses a risk of harm should not be undertaken if there is scientific uncertainty regarding its consequences. In other words, an EC must be obtained before any activity can be undertaken. A rigorous four-stage process is required to grant EC. This includes a thorough study of the potential environmental impacts of the activity and a public consultation to address concerns of all stakeholders. An EC is only granted if the authorities have determined that the activity is suitable for the environment. The conditions must also be met by the project proponent. It is a mandatory procedure that protects the rights of local communities as well as the environment. The environment includes water, air, land, and the inter-relationship of these with humans, other living creatures and plants. Contrary to this, the Water Act (and the Air Act) are specifically concerned with water and air as natural resources that need to be protected from pollution. The industry must comply with both Acts to ensure it is not polluting. However, the prior EC indicates that it is environmentally sustainable in its entirety.
It is non-compliance to this mandatory provision. This was called by the court a simple procedural error and technical irregularity. The court was of opinion that the activities were compliant under the Water and Air Act by simply obtaining consents. It did not account for the larger environmental repercussions on local communities and ecology. The court has set a troubling precedent that will be followed by regularisation Ex-post factoIn other cases, ECs are also required.
The court finds support for such a conclusion in both the General Clauses Act (1897) and the earlier decision in the Case of Union of India v. Electrosteel Steels Limited [2021 SCC online SC 1247]. It states that the environment minister has the power of changing the 2006 Notification because it had the power to make it. Is it possible to change law by simply allowing it not to be executed by letter? Can an amendment be made that is contrary to the scheme of the parent Act itself? Furthermore, the facts in Electrosteel were slightly different to the present. Although an EC was obtained for the project the site had been moved without any modifications to the EC. In the current case, no EC has been obtained. These violations were referred to as technical irregularities in both cases.
In 2004, the court was faced with the question whether to close down the mining operations. The court again considered economic interests and environmental damage in a previous case. It decided that the environment’s protection would prevail over the economic interests when there was doubt. In other words, it would be necessary to take preventive action to avoid harm. However, this time the court has decided to abandon its legacy and suggest that the environment is not its priority. The court would not have accepted ignorance of law as an excuse. It would also not have assumed that an industrial sector was non-polluting and therefore environmentally sound without referring back to any scientific evidence. Our apex courts might need to take a moment to reflect on their role in shaping the future environmental regime in countries around the world, as the world moves towards sustainable development goals and environmental law.
(The article was written by Tarika Jain, a senior resident fellow at the Vidhi Centre of Legal Policy, New Delhi.
