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The Hindu
20-05-2025
- Business
- The Hindu
Stitch in time: on judiciary and Environment Ministry notifications
Last week, the Supreme Court of India finally struck down as 'illegal' two notifications by the Union Environment Ministry that allowed industrial units to set up, expand operations or change their manufacturing practices without following the due process of taking government permission beforehand. Taking 'prior' approval is a sacrosanct principle at the heart of the Environment Impact Assessment (Notification) of 2006. On the surface it appeared that the Centre, or the Union Environment Ministry, had instituted a system that made a mockery of this principle, but there was a rationale, even if it was flawed to some extent. In March 2017, the body issued a notification providing a 'one-time' six-month window for industries that did not have the right environmental clearances, to apply for one. In 2021, it instituted a 'standard operating procedure' that in effect allowed projects in violation of the laws, but which could not avail of the six-month window, to apply — albeit at the cost of heavy fines — for regularisation. Moreover, all these significant changes were being issued through executive orders, rather than any attempt at amending the underlying Environment Protection Act (EIA), 2006, through Parliament. The Centre's reasoning was three-fold. First, the process for regularising projects had already been initiated by the United Progressive Alliance government in 2012 and 2013. These were, however, struck down by the Jharkhand High Court and the National Green Tribunal on procedural grounds, and not that these projects were irredeemably violative. Second, demolishing functioning plants that were contributing to the economy and employment could exacerbate pollution and be disruptive. The Centre cited examples of various disputes involving copper mines to pharmaceutical companies where the courts had agreed that a 'balanced' approach was necessary in cases involving violations. Finally, it argued that it had put in place a system whereby the industrial units seeking to be regularised would have to pay fines for the period that they had functioned in violation. The Court in its final verdict has rightly, as previous courts have, emphasised the principle of 'prior' clearance, though its action may be a little late as it has clarified that companies that had regularised themselves under the 2017 and 2021 orders would be 'unaffected' by the judgment. That thriving industrial units in violation of the laws mushroomed is a testament to the collective failure of regional environmental boards to enforce laws. So it stands to reason that making these illegal units pay, under the purported new procedure, would have been a fruitless exercise. The judgment should ideally nip any 'crafty' attempts by future governments to condone violations in the name of the economy though it must also trigger on-ground enforcement.
Indian Express
18-05-2025
- Politics
- Indian Express
Why Supreme Court struck down the Centre's orders on retrospective green clearances
The Supreme Court on Friday (May 16) struck down and held illegal a 2017 notification of the Ministry of Environment, Forest and Climate Change (MoEF&CC), which introduced a regime of granting projects clearances ex-post facto – after work had already begun. The judgment followed a clutch of petitions challenging the notification. Additionally, the SC judgment set aside a 2021 office memorandum, which introduced a standard operating procedure for streamlining the grant of post facto clearances. The judgment also restrained the Centre from issuing similar notifications or office orders for regularising acts violating the Environment Impact Assessment (EIA) notification of 2006. In March 2017, the MoEF&CC issued a notification providing a 'one-time' six-month window for industries to apply for environmental clearance. It was applicable if they had begun operations, expanded production beyond what they were permitted or changed their product mix without obtaining prior clearance. Notably, a prior clearance is mandatory under the EIA notification, 2006, to scrutinise a project's impact on the environment, natural resources, human health and social infrastructure (such as schools and hospitals). The scrutiny involves a multi-stage process that includes project screening, impact assessment, public hearing and the final recommendation of sector-specific expert appraisal committees. The environment ministry can either grant or reject a final clearance, based on the recommendations of the expert committees. The Centre's core rationale behind the 2017 notification was that rather than leaving cases of violations 'unregulated and unchecked', they should be brought under the compliance net at the earliest. Secondly, the Centre argued that making violators pay for remediation and pollution would take away the economic benefit derived from the violation of laws. The notification stated that state authorities and pollution control boards would act against the violations under the Environment Protection Act, 1986, even as the cases were taken up for clearance. It also stated that irrespective of the category (size, etc.), all cases would be appraised at the central level, and the appraisal would proceed only if the activity was permissible on the site it is situated at, or it would face closure. An expert appraisal committee was constituted under S R Wate, former director of the National Environmental Engineering Research Institute (NEERI), Nagpur, to appraise the cases of violations. The committee met 47 times between 2017 and 2021. In a July 2021 office memorandum, the Centre also issued an SOP for 'identification and handling' violation cases, in compliance with a National Green Tribunal order. Supreme Court's rationale The bench of Justice Abhay S Oka and Justice Ujjay Bhuyan rapped the Centre for issuing OMs 'to protect those who have caused harm to the environment', and questioned whether development can happen at the cost of the environment. It said that the Centre went out of its way to protect those causing harm to the environment, and that the court cannot allow such attempts, as it has the constitutional and statutory mandate to uphold Article 21 (right to protection of life and personal liberty). In the past, the apex court has broadened the scope of Article 21 to include the right to a healthy and pollution-free environment. It held the 2017 notification and 2021 OM in violation of Article 21 and Article 14 (right to equality before law), as the OM was for all project proponents who 'were fully aware' of the consequences of violations. The bench cited examples of dangerous pollution levels in Delhi to point out that there are drastic consequences of large-scale destruction of the environment on human lives. Crucially, the SC bench also reminded the Centre of the undertaking it had given during a past legal challenge to the 2017 notification before the Madras High Court. The High Court had refused to interfere with or stay the notification and noted that industries contributing to the economy could not be closed because they failed to obtain an environmental clearance. However, the HC's order was based on the Centre's undertaking that the 2017 notification was strictly a one-time measure. In fact, the SC held that even a one-time relaxation was illegal as it amounted to infringing on the right to live in a pollution-free environment. The bench cited two past judgments – Common Cause v. Union of India (2017) and Alembic Pharmaceuticals v. Rohit Prajapati (2020) – to reaffirm that ex-post facto clearances were alien to environmental law. It came down heavily on the Centre for violating these orders through the 2021 OM, which essentially regularised the illegality of commencing a project construction without prior clearance. This, the court said, was ex-post facto clearance in substance and a violation of the past orders. In the Alembic case, a bench of Justice Chandrachud and Justice Ajay Rastogi had said that the concept of an ex-post facto was in derogation of fundamental principles of environmental jurisprudence, and an anathema to the EIA notification. The SC bench said that the Centre had attempted to bring in the ex-post facto or retrospective by 'craftily drafting the SOP'. It added that 'cleverly', the words ex-post facto were not used, but effectively it meant the same. More importantly, it had also ordered the Centre not to introduce any version of such orders in the future. An award-winning journalist with 14 years of experience, Nikhil Ghanekar is an Assistant Editor with the National Bureau [Government] of The Indian Express in New Delhi. He primarily covers environmental policy matters which involve tracking key decisions and inner workings of the Ministry of Environment, Forest and Climate Change. He also covers the functioning of the National Green Tribunal and writes on the impact of environmental policies on wildlife conservation, forestry issues and climate change. Nikhil joined The Indian Express in 2024. Originally from Mumbai, he has worked in publications such as Tehelka, Hindustan Times, DNA Newspaper, News18 and Indiaspend. In the past 14 years, he has written on a range of subjects such as sports, current affairs, civic issues, city centric environment news, central government policies and politics. ... Read More
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Business Standard
17-05-2025
- Politics
- Business Standard
SC bars govt from giving post-facto environmental clearance for projects
The Supreme Court has restrained the Centre from granting ex-post facto environmental clearance to mining and other development projects or regularising actions that contravene the 2006 Environment Impact Assessment (EIA) notification. The EIA notification 2006 was designed to ensure that developmental projects are assessed for their potential environmental impacts before approval. Ex-post facto clearance refers to the granting of approval or ratification of an action after it has already been completed. The apex on Friday court ruled that the 'conservation of environment and its improvement is an essential part of the concept of development'. A bench of Justices Abhay S. Oka and Ujjal Bhuyan struck down the ex-post facto environmental clearance (EC) regime under the Environment (Protection) Act, 1986. The court held that the 2017 notification and the 2021 office memorandum (OM) issued by the Ministry of Environment, Forest and Climate Change (MoEFCC) were illegal, arbitrary, and violative of Articles 14 (equality before law) and 21 (protection of life and personal liberty) of the Constitution. Under the EIA Notification, 2006, prior environmental clearance is mandatory for certain categories of industrial and infrastructure projects. However, the MoEFCC issued a notification in 2017 allowing entities to apply for ex-post facto ECs. Further, in 2021, the ministry issued a Standard Operating Procedure (SOP) via an OM. This SOP allowed for conditional clearance of ongoing or completed projects that had bypassed prior EC requirements. These measures were challenged by environmental groups and civil society organisations, including the petitioner in this case, Vanashakti. The court held that the grant of ex-post facto clearance was not permitted under the 2017 notification for the projects and activities which were commenced or continued after March 14, 2017. It further said that the window, which was initially for six months, was eventually extended till completion of 30 days from March 14, 2018. Therefore, the 2021 OM is brought in to do something which was not permissible under the 2017 notification, the law laid down by this court, and the solemn undertaking given by the central government to the Madras High Court, the court said. 'We must deprecate such effort on the part of the central government,' the court held. The court said the concept of ex-post facto EC is alien to Indian environmental law and contrary to earlier rulings (Common Cause v. Union of India, Alembic Pharmaceuticals v. Rohit Prajapati). The court said even the central government must protect and improve the natural environment. 'Can there be development at the cost of environment? Conservation of environment and its improvement is an essential part of the concept of development. Therefore, going out of the way by issuing such OMs to protect those who have caused harm to the environment has to be deprecated by the Courts which are under a constitutional and statutory mandate to uphold the fundamental right under Article 21 and to protect the environment. In fact, the courts should come down heavily on such attempts,' the order said. Granting EC retrospectively undermines the precautionary principle and defeats the very purpose of environmental assessments, the court said.
Time of India
17-05-2025
- Politics
- Time of India
SC order on retrospective environmental clearances a step forward but gaps remain: Experts
Policy experts on Saturday welcomed the Supreme Court 's decision barring the government from granting retrospective environmental clearances but warned that loopholes in environmental laws still exist, and citizens must stay alert to protect their constitutional rights. In a landmark ruling on Friday, the apex court said the government cannot grant retrospective environmental clearances in the future. The court made it clear that projects started without mandatory prior environmental clearance cannot be legalised later. It added that violators who knowingly ignored the law cannot be protected. The judgement came in response to petitions filed by the NGO Vanashakti and others, challenging two government office memorandums issued in July 2021 and January 2022 which had created a system to grant environmental clearance to projects that began operations without prior approval under the Environment Impact Assessment (EIA) Notification, 2006. 5 5 Next Stay Playback speed 1x Normal Back 0.25x 0.5x 1x Normal 1.5x 2x 5 5 / Skip Ads by Stalin D, Director of Vanashakti, told PTI that citizens must now ensure the court's directions are followed. "The judgement clearly says the government cannot try and provide a safe haven for violators. So, we have to ensure that our constitutional framework is not violated in any way." Live Events "One more very pertinent thing in that order is that the people who violated this are not illiterate persons. They are educated, well connected, rich people who knew that they were engaging in a violation, which needs to stop now," he said. Prakriti Srivastava, a retired Indian Forest Service officer, said while it is a good order, knowing the history of environment ministry and project proponents, they will find a way around. She said post-facto approvals mean the damage is already done before clearance is granted. "Will these stop and the ministry obey the SC orders? Let's wait and watch Though knowing the record of MoEFCC, they give two hoots for SC orders and may blatantly disregard them," she added. Himanshu Thakkar, Coordinator of the South Asia Network on Dams, Rivers and People, said the decision is welcome but should have come earlier. He also raised concerns about enforcement. "This is welcome, but the directions could have come sooner. It shows that our system is very slow to react." "Secondly, where is your credible monitoring system to ensure that this doesn't happen? The third thing is there is a bypassing of the law happening. For example, land acquisition is allowed, even when environment clearance is not there. If you have already acquired land, you are creating impacts, displacing people, you are making the project fait accompli," Thakkar said. "So, the Supreme Court also needs to put down more stipulations that you cannot acquire land without environmental clearance because once you acquire the land, then you get the right over the land and you can do what you want to do with it, which is again movement towards irreversibility. So, these kinds of loopholes are still there," he said. Debadityo Sinha, Lead - Climate and Ecosystems at the Vidhi Centre for Legal Policy, said the very purpose of the EIA process is to evaluate alternatives, assess environmental and social impacts and enable public consultation before any project receives approval. It is a fundamental safeguard that ensures development does not come at the cost of ecological integrity." "Granting post-facto Environmental Clearance undermines this entire framework, allowing projects to bypass due diligence and legal scrutiny. It effectively opens the floodgates for unsustainable, poorly planned developments, often in ecologically sensitive areas, where such projects would never have passed scrutiny in the first place. This not only sets a dangerous precedent but incentivises illegal construction in the hope of regularisation through backdoor clearances," he said. Sonam Chandwani, Managing Partner at law firm KS Legal and Associates, said the Supreme Court's decision may shake up the existing system but is not a cure-all. "By killing ex post facto approvals, it puts companies on notice that you start without clearance and you are gambling with your entire project with no retroactive bailouts. Smaller firms, less equipped for legal warfare, might fall in line, seeking clearances upfront to avoid ruin. Activists and communities gain a stronger edge to hold violators accountable, as courts now have a clearer mandate to reject post-facto fixes," she said. Guman Singh, Coordinator of Himalaya Niti Abhiyan, said they had opposed the government's move to allow retrospective environmental clearances. He said the Supreme Court's decision clearly reinforces that environmental laws cannot be diluted to legalise illegal projects and promotes ecological accountability.
New Indian Express
17-05-2025
- Politics
- New Indian Express
SC order on retrospective environmental clearances a step forward but gaps remain: Experts
NEW DELHI: Policy experts on Saturday welcomed the Supreme Court's decision barring the government from granting retrospective environmental clearances but warned that loopholes in environmental laws still exist, and citizens must stay alert to protect their constitutional rights. In a landmark ruling on Friday, the apex court said the government cannot grant retrospective environmental clearances in the future. The court made it clear that projects started without mandatory prior environmental clearance cannot be legalised later. It added that violators who knowingly ignored the law cannot be protected. The judgement came in response to petitions filed by the NGO Vanashakti and others, challenging two government office memorandums issued in July 2021 and January 2022 which had created a system to grant environmental clearance to projects that began operations without prior approval under the Environment Impact Assessment (EIA) Notification, 2006. Stalin D, Director of Vanashakti, told PTI that citizens must now ensure the court's directions are followed. "The judgement clearly says the government cannot try and provide a safe haven for violators. So, we have to ensure that our constitutional framework is not violated in any way." "One more very pertinent thing in that order is that the people who violated this are not illiterate persons. They are educated, well connected, rich people who knew that they were engaging in a violation, which needs to stop now," he said. Prakriti Srivastava, a retired Indian Forest Service officer, said while it is a good order, knowing the history of environment ministry and project proponents, they will find a way around. She said post-facto approvals mean the damage is already done before clearance is granted. "Will these stop and the ministry obey the SC orders? Let's wait and watch Though knowing the record of MoEFCC, they give two hoots for SC orders and may blatantly disregard them," she added.
