Adarsh lawyers too have moved High Court for post-facto clearance

With Adarsh Society's lawyers pleading before the Bombay High Court that the scam-hit society too deserved consideration for post-facto environmental clearance similar to that to be granted to the Lavasa hill city in Pune, the warning of activists and environmentalists that regularising Lavasa would set a disastrous precedent seems to be coming true.

Advocate Mukul Rohatgi stated on Monday that Adarsh and Lavasa cases should be considered on the same grounds. Earlier this month, Maharashtra Chief Minister Prithviraj Chavan had stated that if Lavasa Corporation Limited met the conditions laid down by the MoEF, the project could get a go-ahead.

NAPM challenges clearance

However, Vishwambar Choudhari and Suniti S.R. of the National Alliance of People's Movements (NAPM) have challenged the idea of a ‘post-facto clearance' stating that such a sanction is outside the ambit of the Environmental Impact Assessment (EIA) Notification, 1994.

In a letter to Bharat Bhushan, Director of the Ministry of Environment and Forests (MoEF) dated June 27, 2011, NAPM has said that an Office Memorandum (OM), which the MoEF has used as the basis for ‘regularising' the environmental violations by Lavasa, and can now be used by the Adarsh Society as well, is illegal.

The OM, issued by S.K. Aggarwal, Director, MoEF on November 16, 2010 states that there are instances where “substantial physical progress relating to the construction of the project has been made and significant investments have been made…without obtaining the prerequisite prior environmental clearance.” As a ‘solution' to such projects, the OM states that such cases of violations should be subjected to an Expert Appraisal Committee (EAC), and then processed by a ‘competent authority.' The matter of violations will then be put before the Board of Directors of the project; where the project proponent will be asked to ‘consider' its environment-related policy. Thereafter, a ‘written commitment' in the form of a formal resolution is to be submitted to the MoEF stating that the violations will not be repeated.

The activists argue that Mr. Aggarwal, who has issued this OM, is not a competent authority to do so. “It is against the fundamental provisions of Environment (Protection) Act 1986 and EIA Notification 2006. The Environment (Protection) Act 1986 has been enacted by Parliament of India and the EIA Notification, 2006 is published through an Extraordinary Gazette of India, which is signed by the Joint Secretary to the Government of India who is much senior in hierarchy to the issuing authority, i.e. the Director. Therefore the said OM does not supersede the Environment (Protection) Act and EIA Notification in any case, thus standing null and void,” the activists have stated.

Dangerous precedent

It is in this letter that NAPM points out that if the MoEF issues a post-facto environment clearance to Lavasa, it will establish a ‘disastrous' precedent. “Any project proponent would complete his project by causing irreversible damage to the environment and will then seek Post Facto Environmental Clearance from MoEF taking advantage of the OM. This completely defeats the purpose and objectives of Environment (Protection) Act 1986 and the EIA Notification there under,” it states.

In the letter to MoEF, NAPM has asked the Ministry to issue appropriate orders to quash the “illegal Office Memorandum.” Added to that, “NAPM will be challenging this OM in court separately,” Dr. Choudhari told The Hindu on Wednesday.