The Madras High Court has upheld the validity of a notification issued by Union Ministry of Environment, Forests and Climate Change on March 14 permitting grant of ex post facto environmental clearances for industrial project proponents who had commenced, continued or completed a project without obtaining clearance under the Environmental Protection Act of 1986 and the Environment Impact Assessment (EIA) notification issued under it.
Disposing of a public interest litigation petition filed by the Puducherry Environment Protection Association, represented by its honorary president R. Kothandaraman, the first Division Bench of Chief Justice Indira Banerjee and Justice M. Sundar recorded Additional Solicitor- General (ASG) G. Rajagopalan’s submission that grant of such ex post facto clearances shall be a one-time measure and that public hearings would certainly be held before granting such permissions.
A. Yogeswaran, counsel for the petitioner association, had assailed the notification on the ground that insistence on obtaining environmental clearance was based on the precautionary principle, and therefore, obtaining such clearance before commencement of the projects was imperative and non-negotiable under the Environmental Protection Act. He also pointed out that the Centre’s notification was silent on conducting public hearings before granting ex post facto clearance.
The counsel recalled that the Centre had issued a similar notification on January 27, 1994, to permit violators to set their houses in order. That notification had set a cut-off date up to March 31, 1999, which was extended up to June 30, 2001, and again till March 31, 2003, through successive notifications. One more notification was issued on September 14, 2006, and it continues to be extended for the fifth time through the notification under challenge in the present case, he claimed.
‘Presumption wrong’
Mr. Rajagopalan contended that the case had been filed on a wrong presumption that all projects which had not obtained prior environment clearance would be given ex post facto clearance. He said that an Expert Appraisal Committee (EAC) would assess individual projects and grant clearance with retrospective effect only to projects which had been constructed at permissible sites and which could be allowed to operate on a sustainable basis after complying with environmental norms.
In cases where the EAC gives a negative opinion, all legal proceedings, including penal action under Section 19 of the Environmental Protection Act would be initiated against the project proponents and no consent to operate the project or occupy the premises would be issued besides ensuring closure of the project, the ASG assured the court.
Authoring the judgment for the Bench, Mr. Justice Sundar held that it would suffice to dispose of the case after recording the ASG’s submissions. The Chief Justice concurred with the view taken by her companion judge, yet chose to add more to it by writing a separate judgment stressing the need for a court of law to strike a balance between protecting the environment as well as the livelihood of employees dependant on projects which had failed to obtain prior environmental clearance.
“The question is whether an establishment contributing to the economy of the country and providing livelihood to hundreds of people should be closed down only because of failure to obtain prior environmental clearance, even though the establishment may not otherwise be violating pollution laws, or the pollution, if any, can conveniently and effectively be checked. The answer necessarily has to be in the negative,” Ms. Justice Banerjee said.
