SC to hear pleas for review of verdict on grant of environmental clearances to projects

New Delhi, Sep 16 (PTI) The Supreme Court on Tuesday agreed to hear over two dozen pleas seeking review of its May 16 verdict that struck down Centre’s decision to grant retrospective clearances to projects found in violation of environmental norms.

The May 16 verdict authored by former top court judge Justice A S Oka barred the Ministry of Environment Forests and Climate Change (MoEFCC) and authorities concerned from granting retrospective environmental clearances, saying the right to live in a pollution free atmosphere was a part of the fundamental right.

Significantly, 25 firms, including PSU Steel Authority of India Ltd, have moved the top court for a review or modification or clarification of the judgement.

One of the petitioner firms M/S Kumar Organic Products Limited, represented by advocate Gopal Jha, has sought a clarification on the status of disposal of applications for the environment clearance filed pursuant to the March 14, 2017 notification and awaiting final approval prior to the May 16 judgment "for the reasons beyond the control of the applicants”.

A special bench comprising Chief Justice B R Gavai and Justices Ujjal Bhuyan and K Vinod Chandran issued notices on pleas, including review petitions, and fixed them for hearing at around 2 pm on October 7.

“We are considering the review (petitions)... it is for them to point out errors apparent on the face of the records… fortunately or unfortunately, we have to decide,” the CJI said when some lawyers objected to the petitions.

The bench of Justices Oka and Bhuyan also made scathing remarks in its verdict passed on a plea filed by NGO Vanashakti and said, "The Union Government, as much as individual citizens, has a constitutional obligation to protect the environment.” The erstwhile bench, however, said the ex-post facto environmental clearances granted in certain cases both under the 2017 notification and the 2021 office memorandum (OM), at the present stage, wouldn't be disturbed.

Some firms have now sought permission to get the ECs on the ground that they had no role in the delay in getting the clearances.

The judgement had said it "must come down very heavily" on the Centre's attempt to do "something which is completely prohibited under the law".

"Cleverly, the words ex post facto have not been used, but without using those words, there is a provision to effectively grant ex post facto EC. The 2021 OM has been issued in violation of the decisions of this court…." The bench, therefore, declared the 2021 office memorandum (OM) and related circulars “arbitrary, illegal, and contrary to the Environment (Protection) Act, 1986 and the Environmental Impact Assessment (EIA) Notification, 2006".

The Centre, as a result, was restrained from issuing directions for grant of ex post facto clearances in any form or manner or for regularising the acts done in contravention of the EIA notification.

“Under Article 21 of the Constitution, the right to live in a pollution free environment is guaranteed. In fact, the 1986 Act has been enacted to give effect to this fundamental right… Therefore, even the Central government has a duty to protect and improve the natural environment,” it said.

The court ruled these measures, unlawfully permitted the regularisation of projects in violation of environmental laws.

Referring to a March 14, 2017 MoEFCC notification, the bench said it was made applicable to projects or activities that started the work on site, expanded production beyond the limit of EC, or changed the production mix without obtaining the clearance.

“There is already a concluded finding of this court that the concept of ex post facto or retrospective EC is completely alien to environmental jurisprudence and the EIA notification,” it added.

The violation of the condition of obtaining prior EC must be dealt with heavy hands, it said.

“In environmental matters, the courts must take a very strict view of the violations of the laws relating to the environment. It is the duty of the Constitutional courts to do so,” it said.

The bench said the OM was violative of fundamental rights of all persons guaranteed under Article 21 to live in a pollution free environment and it also infringes the right to health guaranteed under Article 21 of the Constitution.

Trashing the OM, the bench asked, “Can there be development at the cost of the environment? Conservation of environment and its improvement is an essential part of the concept of development.” The top court further opined courts should come down heavily on such attempts.

"As stated earlier, the OM deals with project proponents who were fully aware of the EIA notification and who have taken conscious risk to flout the EIA notification and go ahead with the construction/continuation/expansion of projects. They have shown scant respect to the law and their duty to protect the environment,” it noted. PTI SJK SJK AMK AMK