EIA Notification: Judiciary's Tryst With 'Ex Post Facto' Environmental Clearance

The phrase 'Ex Post Facto' is being widely used these days, thanks to Clause 22 of the Draft Environment Impact Assessment 2020. Ex Post Facto is a Latin phrase which means 'done, made, or formulated after the fact'.The controversial clause 22 of the Draft Environment Impact Assessment 2020 provides a route for those who run a project or an activity without obtaining prior-Environmental Clearance, to apply it later. They are, however, made to comply with a stipulation of the implementation of EMP, comprising remediation plan and natural and community resource augmentation plan corresponding to the 1.5 times the ecological damage assessed and economic benefit derived due to violation.Supreme Court On Ex Post Facto Environmental Clearance (EC)Emphasizing the relevance of "The Precautionary Principle", the Supreme Court in MC Mehta vs. Union of India held that it makes it mandatory for the State Government to anticipate, prevent and attack the causes of environmental degradation.In Common Cause vs. Union of India, the Supreme Court bench headed by Justice Madan B. Lokur observed thus: "The grant of an ex post facto environmental clearance would be detrimental to the environment and could lead to irreparable degradation of the environment. The concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence including EIA 1994 and EIA 2006. We make it clear that an EC will come into force not earlier than the date of its grant."Justice DY Chandrachud led Bench of the Apex Court, in April this year, noted the above observations made in Common Cause and observed in Alembic Pharmaceuticals Ltd vs Rohit Prajapati: : "The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence and is an anathema to the EIA notification dated 27 January 1994. It is, as the judgment in Common Cause holds, detrimental to the environment and could lead to irreparable degradation. The reason why a retrospective EC or an ex post facto clearance is alien to environmental jurisprudence is that before the issuance of an EC, the statutory notification warrants a careful application of mind, besides a study into the likely consequences of a proposed activity on the environment. An EC can be issued only after various stages of the decision-making process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development.". However, in this case, the Supreme Court set aside the impugned judgment of the NGT in so far as it directed the revocation of the ECs and directed the three industries to deposit compensation quantified at ₹ 10 crores each. The above observation made by the bench was after taking notice of the earlier judgment of the Court in Lafarge Umiam Mining Private Limited v Union of India which upheld the decision to grant ex post facto clearances with respect to limestone mining projects in the State of Meghalaya. NGT Struck Down OMs Allowing Post Facto ECs During EIA 2006 RegimeEIA 2006 Notification did not deal with the 'violations' aspect. But as the present Minister pointed out, there are some Office Memorandum issued to deal with violators. These were struck down by National Green Tribunal.Two persons had filed OA before the NGT assailing validity of three Office Memoranda dated 16th November, 2010, 12th December, 2012 and 27th June, 2013 contending that the same provides for the grant of ex-post facto Environmental Clearance in terms of the Notification of 2006. Agreeing with these contentions, the NGT Principal Bench headed by Justice Swatanter Kumar observed that when when the law mandates prior approval, it ought not to be averred as post activity approval or ex-post facto permission. The Tribunal then declared the Office Memoranda dated 12th December, 2012 and 27th June, 2013 as ultra vires the provisions of the Environment Protection Act,1986 and the Notification of 2006. It made the following observations:What these Office Memoranda seek to do is to condone the violations of law. These Office Memoranda deal only with the violators of law who have started the construction of their projects without obtaining prior Environmental Clearance, thus, in complete...

EIA Notification: Judiciary's Tryst With 'Ex Post Facto' Environmental Clearance

Ashok Kini

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