Ex post facto environmental clearance allowed in exceptional cases: SC

Ex post facto green clearances can be granted in exceptional circumstances even after taking into account all environmental impacts, the Supreme Court has observed.
The Supreme Court set aside an order of the NGT on closure of industries running without prior green clearance. (HT file photo)
The Supreme Court set aside an order of the NGT on closure of industries running without prior green clearance. (HT file photo)
Updated on Mar 27, 2022 04:47 AM IST
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ByJayashree Nandi, New Delhi

Ex post facto green clearances can be granted in exceptional circumstances even after taking into account all environmental impacts, the Supreme Court has observed, as it set aside an order of the National Green Tribunal on closure of industries running without prior approval.

Ex post facto environmental clearance refers to allowing functioning of an industry or project which has started operating without obtaining the green clearance and disclosing the probable environmental impacts of the project.

A bench comprising Justices Indira Banerjee and JK Maheshwari on Friday observed that the Environment (Protection) Act, 1986, did not absolutely prohibit the grant of ex post facto environmental clearance.

“Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularisation of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable rules, regulations and/or notifications,” the court’s order said.

“The deviant industry may be penalised by an imposition of heavy penalty on the principle of ‘polluter pays’ and the cost of restoration of environment may be recovered from it,” it said, adding that it should be also considered whether the deviant unit is contributing to the economy of the country and providing livelihood to hundreds of people.

The top court was listening to an appeal filed by Pahwa Plastics Pvt. Ltd against an NGT order which said that the firm’s manufacturing units, which did not obtain prior environmental clearance, will not be henceforth allowed to operate.

Taking note of the Supreme Court’s order, Congress leader and former environment minister Jairam Ramesh tweeted: “The Supreme Court has ruled that ex-post facto environmental clearance should not be granted routinely, but only in exceptional circumstances. Even so, I am worried about the message those who bypass laws could take from this precedent.”

“The worry is that in every case of violation, the project may always state that it is an exception. Exceptional circumstances is not an objective criterion and will open the floodgates for misuse. There will be unfettered discretion and arbitrariness in decision making. This nullifies the fundamental basis of environmental law which is precautionary principle,” environmental lawyer Ritwick Dutta said.

Meanwhile, all requests for approval on clearances for projects that have already started construction or operations on forest land will now be cleared by the environment ministry, people familiar with the matter said.

Proposals for use of forest land for non-forest purposes, which involve violation of the Forest Conservation Act, will be examined at the level of the ministry, according to a March 22 letter to all regional offices of the ministry.

The regional offices have been directed to examine and process all such proposals and forward them to the ministry with comments and recommendations for appropriate decision.

The issue of such exceptional approvals was discussed by the ministry’s forest advisory committee on November 26 last year. The panel decided that even if the violation involves less than 40 ha area, it has to be referred to the environment ministry.

“We have been getting a lot of proposals for ex post facto clearances. We have decided that all such cases of violations need to be decided on by the Centre,” an official of the forest conservation division of the ministry said on condition of anonymity.

The government goes not typically encourage such requests, but grants forest clearances in exceptional cases.

“Often, ex post facto applications cannot be rejected. They need to be approved with appropriate penalties,” the official said. “So, all regional offices have been asked to refer violation cases to us.”

“The environment ministry’s clarification reconciles and reorganizes the institutional powers to take decisions on projects seeking post facto forest clearances. According to guidelines, the power rests with state governments whereas the 2003 rules gives powers to the environment ministry to take action against violations,” said Kanchi Kohli, legal researcher at the Centre for Policy Research, a think tank.

“The new interpretations vests the powers with the union environment ministry based recommendations of the regional offices,” she said. “It is the union ministry which will review projects in violation of the forest conservation act, ascertain encroachments and consider cases for regularization.”

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Tuesday, June 28, 2022