Supreme Court Reserves Judgment On Pleas Challenging Centre's Notifications On Ex Post Facto Environmental Clearance

The Supreme Court on Wednesday (April 2) reserved judgment on pleas challenging two union government orders dated July 2021 and January 2022. The orders allowed ex-post facto clearance for mining projects that began without the prior environmental clearance required under the Environment Impact Assessment (EIA) Notification, 2006.

A bench of Justice Abhay Oka and Justice Ujjal Bhuyan heard a batch pleas filed by NGOs Vanashakti and others challenging the two Office Memoranda. The impugned government orders provided a Standard Operating Procedure (SOP) for handling cases where projects began operations without an environmental clearance.

On Wednesday, Additional Solicitor General Aishwarya Bhati brought the Court's attention to the counter affidavit filed by the Union of India, and said that the July 7, 2021 OM is a mechanism to deal with projects which had commenced without proper clearance in violation of EIA.

“Otherwise it will be like the Supertech buildings which had to be demolished. We have to keep in mind that demolition is also not pollution free. And in a developing country like ours can we afford this…At some point we have to consider the environmental cost of environmental litigation”, she said, highlighting the case of Supertech Twin Towers that were demolished in 2021 on the court's order following a finding that they were constructed illegally.

Vanashakti has which argued that the EIA Notification, 2006, clearly mandates prior environmental clearance for projects before they commence. The NGO has pointed out that the notification uses the term “prior environmental clearance” 34 times, leaving no room for exceptions. It contended that the Union government's orders from 2021 and 2022 contradicted this requirement by creating a system that allowed projects to seek approval even after they had already started.

It claimed that the Ministry had, in the January 2022 memorandum, treated the guidelines as a procedure for processing clearance applications even after the expiry of the window originally stipulated in the EIA Notification.

The Supreme Court, on January 2, 2024, granted an interim stay on the orders.

In July 2024, the Ministry of Environment, Forest and Climate Change filed a counter affidavit in a tagged petition filed by NGO One Earth challenging the Notification dated March 14, 2017, and the Office Memorandum dated July 7, 2021. It has stated that the notification was issued for projects that had operated in violation of the requirement to apply for clearance within a six-month window.

The affidavit noted that this window closed on September 13, 2017, and that the subsequent Office Memorandum (OM) dated July 7, 2021, provided a mechanism to address the handling of violation cases. The Union contended that there was no existing procedure under the EIA Notification, 2006 for dealing with projects that started without clearance. As a result, the ministry was under an obligation to establish a regulatory framework, which it did by issuing guidelines and OMs over a period that included orders on November 16, 2010; December 12, 2012; and June 27, 2013.

The affidavit stated that if these projects were not given a chance to regularize their status, they would face demolition and removal.

Further, the Union of India has contended that the OM dated July 7, 2021, did not dilute the requirement of obtaining prior clearance or allowed for retrospective clearance, rather, it is an independent regulation, separate from the Notification dated March 14, 2017, and issued solely to address cases of violation where projects had begun operations without the mandatory approval.

The Union argued that its measures were in line with the statutory provisions of the Environment (Protection) Act, 1986. The affidavit stated that the ministry had not attempted to modify or nullify the clear requirement of prior environmental clearance under the EIA Notification, 2006. Instead, it maintained that its approach was meant to address continuing violations in a manner that would prevent environmental damage, assess the cost of such damage, and apply the polluter pays principle.

Case no. – Writ Petition No. 1394 of 2023

Case Title – Vanashakti v. Union of India and connected matters.