SC RESERVES VERDICT ON CHALLENGES TO EX POST FACTO ENVIRONMENTAL CLEARANCE:

On Wednesday, April 2, the Supreme Court reserved its judgment on petitions challenging two Union government orders issued in July 2021 and January 2022. These orders permitted ex-post facto environmental clearance for mining projects that commenced operations without obtaining prior approval, as mandated by the Environment Impact Assessment (EIA) Notification, 2006.

A bench comprising Justice Abhay Oka and Justice Ujjal Bhuyan heard a series of petitions filed by NGOs, including Vanashakti, contesting the two Office Memoranda. The challenged government orders outlined a Standard Operating Procedure (SOP) for addressing cases where projects had begun operations without securing the necessary environmental clearance.

On Wednesday, Additional Solicitor General Aishwarya Bhati referred to the counter affidavit submitted by the Union of India and stated that the Office Memorandum (OM) dated July 7, 2021, serves as a mechanism to address projects that had begun operations without the necessary clearance, thereby violating the Environment Impact Assessment (EIA) regulations.

“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 argued that the EIA Notification, 2006, explicitly requires projects to obtain prior environmental clearance before commencing operations. The NGO highlighted that the notification uses the term “prior environmental clearance” 34 times, leaving no scope for exceptions. It contended that the Union government’s orders from 2021 and 2022 contradicted this requirement by establishing a system that permitted projects to seek approval retroactively, even after operations had already begun. Furthermore, Vanashakti asserted that the Ministry, in its January 2022 memorandum, treated these guidelines as a procedure for processing clearance applications beyond the originally stipulated window in the EIA Notification. On January 2, 2024, the Supreme Court granted an interim stay on these orders.

In July 2024, the Ministry of Environment, Forest and Climate Change filed a counter affidavit in a related petition by NGO One Earth, which challenged the Notification dated March 14, 2017, and the Office Memorandum dated July 7, 2021. The Ministry maintained that the notification was issued to address projects that had operated in violation of the requirement to apply for clearance within the designated six-month period.

The affidavit stated that the six-month window for obtaining clearance closed on September 13, 2017, and that the subsequent Office Memorandum (OM) dated July 7, 2021, was introduced to provide a framework for handling cases of violations. The Union argued that the EIA Notification, 2006, did not contain any provisions to address projects that had commenced without prior clearance. Consequently, the Ministry was obligated to establish a regulatory mechanism, which it did through a series of guidelines and Office Memoranda, including those issued on November 16, 2010; December 12, 2012; and June 27, 2013. The affidavit further noted that without an opportunity to regularize their status, such projects would face demolition and removal.

Additionally, the Union of India asserted that the OM dated July 7, 2021, neither diluted the requirement for prior environmental clearance nor permitted retrospective approval. Instead, it was an independent regulation distinct from the March 14, 2017, Notification, specifically designed to address cases where projects had commenced operations without the necessary approval.

The Union contended that its regulatory approach aligned with the statutory provisions of the Environment (Protection) Act, 1986. It maintained that the Ministry had not attempted to override or undermine the mandatory requirement of prior clearance under the EIA Notification, 2006. Rather, its measures aimed to address ongoing violations in a way that mitigated environmental damage, assessed the extent of harm caused, and enforced the "polluter pays" principle.