Kerala HC Partly Quashes Centre's 2022 Memo Extending Validity Of Clearance For Mining Projects As Violative Of Environment Protection Act

The Kerala High Court has struck down portions of a 2022 notification and subsequent clarification (Office Memorandum (O.M.)) issued by the Union Ministry of Environment, Forest and Climate Change (MoEFCC) to the extent it gives extension of validity period of Environment Clearance to mining projects.The requirement of prior environment clearance (EC) for mining projects over 5 hectares was introduced by the 1994 EIA (Environment Impact Assessment) notification. With the 2006 notification, State Level Environment Impact Assessment Authorities (SEIAA) and the State Level Expert Appraisal Committees (SEAC) were constituted.Subsequently, District Level Environment Impact Assessment Authorities (DEIAA) and the District Level Expert Appraisal Committees (DEAC) were constituted, and the Mines and Minerals (Development and Regulation) Amendment Act, 2015 was introduced.Justice C. Jayachandran in his order observed:“The impugned Ext.P8 notification dated 12.04.2022 –insofar as it is applicable to mines and mining operations as provided in clause 9(iv) - is declared ultra vires the Environment (Protection) Act, the Environment (Protection) Rules, and also, the EIA notification, 2006 and hence struck down as unconstitutional. Ext.P9 Office Memorandum is also declared illegal and ultra vires the Environment (Protection) Act, the Environment (Protection) Rules and the EIA notification, 2006, insofar as it pertains to mines and mining operations. Consequently, the 6th respondent will stand directed, by a writ of mandamus, to take action in accord with law regarding the quarrying operations of the 9th respondent, treating Ext.P20 E.C. to have expired.”66 writ petitions were filed seeking a direction to extend the benefit of the 2022 notification read with O.M. According to the petitioner entities, the environmental clearance (EC) granted to them have a validity of 30 years instead of 5 years in view of the notification.However in one writ petition filed by petitioner Jijo Joy challenged the constitutional validity of the notification and OM. The amicus curiae also urged that the notification and OM are illegal and liable to be struck down.As per the 2022 notification clause 9 of the EIA Notification 2006 was amended. The unamended clause 9 said that the prior EC granted for a mining project was valid for the 'project life' as estimated by the EAC(Expert Appraisal Committee), SEIAA or DEIAA, subject to a maximum of 30 years. However, after the 2022 amendment, the prior EC granted for the mining projects is to be valid for 'project life' as laid down in the mining plan. The term 'project life' means the 'mine life', subject to a maximum of 30 years, whichever is earlier. No public consultation conducted The Court held that notification was bad in law since it did not adhere to the procedure laid down under the Environment Protection Rules. The notification was issued after dispensing with the public consultation provided under Rule 5(3) of the Rules. The Court found that the 'public interest' exemption provided under Rule 5(4) do not apply in the present case since there is no purported public interest promoted by the notification. It observed:“The solitary reason stated in Ext.P8 notification to dispense with public notice/consultation is 'public interest'; the very terminology of the requirement stipulated in Rule 5(4)…there is absolutely no clue as to what was the paramount public interest to dispense with the requirement of a public notification calling for objections in terms of Rule 5(3)(a) of the E.P. Rules.”Interpreting Rule 5(4), it further observed:“Rule 5(4) is liable to be interpreted strictly, and the paramount public interest to dispense with the mandatory requirement under Rule 5(3), has to be demonstrated, ideally in the notification itself; and at any rate, from the overall facts and circumstances as culled out from the counter affidavit or the statement of the authority, which introduces the notification. It needs no emphasis that the requirement of Section 5(4) of the E.P. Rules is definitely not to merely refer the term 'public interest'. Instead, the legal requirement is to state the real and actual facts constituting such public interest, justifying dispensation of public consultation, which is otherwise mandatory. In other words, there should be a fully convincing reason to do away with the requirement of notice in terms of Rule 5(3)(a).”No public or environmental interestThe Court found that by the notification, the task of determination of project life was taken away from the SEAC and instead given to the competent authority under the Mines and Minerals (Development and Regulation) Act (MMDR).“In substance, it has gone into the hands of the authority under the M.M.D.R. Act, which authority cannot be considered as an expert body constituted of domain experts in the fields concerned…Shifting of such powers from the hands of the expert body to an authority under another Act, the M.M.D.R. Act,...

Kerala HC Partly Quashes Centre's 2022 Memo Extending Validity Of Clearance For Mining Projects As Violative Of Environment Protection Act

K. Salma Jennath

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