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The Supreme Court is sending wrong signals on post facto environmental clearances

Recently, the apex court has overlooked its own judgments and the underlying logic behind why there is a mechanism for environmental impact assessments and clearances

The Supreme Court again went on to signal last week that complying with the requirements of environmental law was optional. In D Swamy vs Karnataka State Pollution Control Board (“D Swamy”), decided last week, the court concluded that ex post facto environmental clearances (EC) were acceptable.

The court reached this conclusion in response to a claim that a bio-medical treatment facility was set up and run without an EC.

In 2017, a bench consisting of Justices Madan Lokur and Deepak Gutpa, after reviewing the underlying purpose of an EC, observed in Common Cause vs Union of India:

“The concept of an ex post facto or a retrospective EC is completely alien to environmental jurisprudence” because it can “be detrimental to the environment and could lead to irreparable degradation of the environment” (paragraph 125).

However, time and again, the court has decided to ignore this underlying logic to condone the lack of prior consent. Let me present brief critical review of the judgments on this issue.

We have more than one instance where the court was willing to overlook lack of compliance with the law and grant remedies to polluting industries, one way or the other.

Electrotherm (India) Limited v Patel Vipulkumar Ramjibhai, decided in 2016, was the case of a steel plant undertaking expansion without conducting a public hearing and a clearance being given to it despite this.

The National Green Tribunal (NGT) decided that this resulted in the clearance becoming invalid and the expansion being reversed. But the Supreme Court, on appeal, decided that since the unit in question was in operation for some time now:

Hence, considering the peculiar facts of the case, “the interest of justice would be sub-served if that part of the decision exempting public consultation / public hearing is set aside and the matter is relegated back to the concerned Authorities to effectuate public consultation / public hearing”. 

A few years later, in Alembic Pharmaceuticals Ltd v Rohit Prajapati (2020), the Court dealt with a situation where a number of industrial units that were set up functional without clearances were ordered to be closed down by the NGT, even though they obtained these clearances later.

The court went on to cite the judgment in Common Cause to reiterate that: “The concept of an ex post facto EC is in derogation of the fundamental principles of environmental jurisprudence…”.

It was observed that the purpose of an EC was to identify the likely impact of an activity on the environment with a view to implement adequate protective measures and in the absence of EC, these measures would not exist (paragraph 23).

However, after noting that these entities had subsequently been granted a clearance, the court concluded that since they were functioning for a long period of time and they employed a large number of workers:

“This Court must take a balanced approach which holds the industries to account for having operated without environmental clearances in the past without ordering a closure of operations” and that they must be permitted to function by paying a penalty in terms of the principle that “polluter pays”.

The court characterised this as an exceptional measure, peculiar to the facts of that case.

In both these cases, the court took the basic stance that an ex post facto clearance would not comply with the requirements of environmental law but made an exception of the situation at hand to “meet the ends of justice”. However, this was to change soon.

Electrosteel Steels Limited v Union Of India, decided in 2021, involved a mine that functioned without adequate clearances and the NGT had ordered its closure.

According to the court:

“The question (was) whether an establishment contributing to the economy of the country and providing livelihood to hundreds of people should be closed down for the technical irregularity of shifting its site without prior environmental clearance” without affording it an opportunity to rectify this issue.

The court went on to answer this question in the negative, also holding that it was within the powers of the government to allow a post-facto environmental clearance, as the law did not expressly prohibit it.

Across these cases, what one witnesses is a form of reluctance to order closure of industries even though they had started to function without adequate clearances. The reluctance appears to be driven by how it affects the livelihood of workers, or how time has passed or how they contribute to the economy.

While these are indeed relevant concerns, can we regard that these are adequate reasons to overlook non-compliance with the law? Time and again the Supreme Court has reiterated that sustainable development is a part of the right to life and it forms one of the components of the right to a clean and healthy environment.

The least that sustainable development requires is to evaluate the potential environmental impacts of a proposed activity and take measures to prevent or minimise them.

A post-facto approval can never achieve this, as there are no harms visualised and no remedies taken in advance. To resort to “polluter pays” to rectify this only makes it pollute and pay.

The judgments in Electrosteel and D Swamy seems to lay down a troubling general proposition that post-facto environmental clearances are permissible. This is contrary to the earlier judgment of the court in both Common Cause and Alembic, which in some detail explained why this would be contrary to logic and the foundations of environmental law.

Unfortunately, the court overlooked these judgments and the underlying logic behind why there is a mechanism for environmental impact assessments and clearances and what they seek to achieve.

Perhaps more damaging is the signal that the court sends to the public at large.

The message that it is alright to ignore the requirement for environmental clearances, if it can be rationalised later with the number of persons who may stand to lose their jobs or the significance of the activity to the economy. In such cases, it appears that the principle can be pollute and pay.

Mahesh Menon is currently a Doctoral Candidate at Lund University in Sweden. He is on a sabbatical from School of Law at Sai University, Chennai, where he is Assistant Professor of Law.

Views expressed are the author’s own and don’t necessarily reflect those of Down To Earth





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