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India’s courts have given new meaning to environmental law through the polluter pays, precautionary principles, and the public trust doctrine. The law of the land also includes newer ones, such as the species best-interest standard and ecocentrism.
Courts all over the world have cited the Supreme Court’s decisions for their bold and visionary approach. India is an excellent example of how a nation that has 1.3 billion citizens, and millions of people living below the poverty level, can still prioritize the important things. environmentalrule of law and protect its natural resources.
However, Supreme Court decisions are inadmissible Pahwa Plastics Pvt. Ltd.March 22, 2022, and in Electrosteel Steels Ltd.2021 have all deviated in significant ways from the courts record and mark a fundamental shift of the courts approach to environmental issues.
Pahwa Plastics
In June 2021 the National Green Tribunal held that industrial units producing synthetic organic chemicals in Haryana had to obtain an environmental clearance from the Union Environment Ministry before they could start operations. The units had to prepare an environment impact assessment and hold a public hearing before approval was granted.
The NGT found that none of the units had received an environmental clearance prior to their operation. The tribunal’s decision was challenged by the aggrieved industrial unit. They argued that they were bona fideThey were misled into believing that they did not need to obtain Environmental Clearance to make formaldehyde, and that Environmental Clearance was not required for the (the) units.
The Supreme Court will decide whether an establishment that employs around 8,000 people and has received the consent to establish and consent to operate from the appropriate statutory authority can be closed pending the issuance of the clearance, even though it may not emit pollutants or be in compliance with the required norms.
Justice Indira Banerjee headed the Supreme Court bench.
[Para 56]The manufacturing units owned by the Appellants have a turnover of over $1 billion annually and employ about 8,000 workers. An establishment that contributes to the nation’s economy and provides employment should not be shut down simply because it did not obtain prior Environmental Clearance.
[63]Ex post facto clearance of environmental issues should not be granted on a regular basis, but only in exceptional circumstances that take into account all relevant environmental factors.
[65]The 1986 Act (Environment Protection Act, 1986) does not prohibit ex-post facto. [Environmental Clearance]. It is permissible to grant ex post facto EC and some relaxations. However, it must be done in strict compliance with the Rules, Regulations and Notifications.
Legalising illegality
The legality of the judgment is at the heart of the decision. Post facto clearances. This term does not exist in the Environment (Protection) Act 1996 nor in the Environment Impact Assessment Notification (2006). It is a term that an executive introduced by a so-called office memo, i.e. an order to regulate office operations. A prior environmental clearance, also known as. Before work can begin, approval must be obtained from the appropriate statutory authorities.
The Pahwa PlasticsThe court ruled that post-facto approval is permissible by law in this case. It is clear that the court’s conclusion focuses on the industry’s 8,000 workers and its huge annual turnover. This shows that the industry contributes to the national economy and provides employment.
Additionally, a unit that fails to obtain prior approval under the law is considered technical irregularity. However, according to the court it is technically illegal even if the unit pollutes environment. This conclusion is bound have serious consequences for the environmental rule of laws as well as the right of citizens to life, guaranteed under Article 21.
Pahwa Plastics It is likely that there will be a ripple effect due to the fact that courts have not dealt with violations of environmental laws as a simple violation of statutory law but as an infringement on the constitutional right to clean water and balanced ecosystems.
This isn’t the first time that the court has approved post facto approvals. Pahwa PlasticsIt draws its inspiration from the Supreme Courts judgment in Electrosteels Steel Ltd. Justice Banerjee also wrote the 2021 Act.
In ElectrosteelA unit that had received environmental clearance had moved its premises nearly 5.3km from the site where it had obtained it. These clearances are site-specific and based on each site’s ecological parameters, so the shift warranted a new clearance. The court ruled otherwise.
[Para 82]The question is: Should an establishment that contributes to national economy and provides employment to hundreds of people be closed down due to technical irregularities of shifting its site without prior approval from the environment? If so, the establishment will not be able to continue its operations by obtaining the necessary clearances and permits. The answer is no.
The court concluded:
Ex post facto clearances should not be granted and certainly not for the asking. However, ex post facto clearances and/or authorizations and/or removals of technical irregularities as per Notifications pursuant to the 1986 Act must not be declined with pedantic rigidity, oblivious the consequences of a stopped operation of a working steel plant.
Surprisingly, Pahwa PlasticsMany of the same phrases are used in judgment. Electrosteel.
The court repeatedly stated that post-facto approval is allowed under the Environment (Protection) Act 1987. The Act does not allow for post facto approvals. The Environment Impact Assessment Notification of 2006 also does not mention post-facto clearances.
Furthermore, the court allowed decision-makers to exercise their discretion without restriction. In particular, ex post facto clearance for environmental purposes should not be granted routinely. Pahwa PlasticsIn exceptional circumstances, it may be granted. These circumstances are not defined.
Finally, the court gave the government a window within the framework of which it could grant a post-facto approval if the adverse effects of denial outweigh the benefits of regularisation by granting ex post facto permission.
Doctrine on proportionality
The main issue is the courts’ excessive reliance on the doctrines of proportionality too late. In Pahwa PlasticsIn a ruling, the Supreme Court invoked proportionality to determine that closing an industrial facility would be in proportion to the offense. Administrative action should not be more severe than it already is. Should beTo get the desired result. Also, the court states that you should not use a gun to shoot down sparrows.
The question is, “Do you want to be a spokesman for the company?” Insist onIt can be deemed disproportionate to request closure without prior environmental clearance. Once a law clearly states that prior environmental clearance must first be sought, that means that every project proposal must seek approval in advance. Any deviations from this procedure will be considered an act of illegality.
The Supreme Court’s conclusion, however, that such a violation is not a technical error is deeply troubling. This implies that compliance is voluntary and not mandatory.
Both Pahwa PlasticsAnd ElectrosteelThey are problematic because they only address environmental issues through the narrow lens of polluting. The Supreme Court repeatedly stated that the reason to allow these industries some leeway was because they aren’t polluting and they comply with environmental laws. Environmental law is more than just about pollution. It also concerns where industrial units are located, how they impact the environment, and the carrying capacity of the environment. And, most importantly, it includes the views and concerns that the affected people.
If we adhere to the legal principles set forth in these two judgements, we may be able to erect large plastic-making enterprises in the middle Lutyens India without needing an environmental clearance. This is because the facility would not pollute, be compliant with environmental laws in the future, and could employ 1,000 people.
As with most other judgments regarding our environmental laws, Pahwa PlasticsThis is a liberally used reference to the 1972 Stockholm declarationAs well as the principles of sustainable growth. These two entities are meaningless if we don’t also take responsibility for implementing our laws.
It is important that the court treats violations of environmental laws as more then technical irregularities. They should be considered crimes against humanity and nature as well as a violation constitutionally guaranteed rights. If it doesn’t, Pahwa PlasticsIndia’s position in the world as an environmental leader will be marked by this event.
Ritwick Duttais an environment lawyer.
