Madras High Court Temporarily Closes Backdoor Entry For Environment Law Violators
In the last two decades, government after government has sought to regularise projects in violation of environment laws. So far, at least 11 such attempts have been made via office memorandums, circulars and notifications.
The fate of most of them has been fatal.
The Supreme Court, high courts and the National Green Tribunal have repeatedly held that concept of post-facto environmental clearance is in derogation of fundamental principles of environmental jurisprudence.
Most recently, the Madurai bench of the Madras High Court has granted an interim stay on a July 7 office memorandum that would’ve made way for retrospective regularisation of projects.
The petition before the high court was bound to succeed since any retrospective blessing to environment law violators can only be given via an amendment to the Environment Protection Act, KN Bhat, senior advocate practicing at the Supreme Court, told BloombergQuint.
The Environment Ministry’s concerted efforts are indicative of the fact that their mandate is no longer protection of the environment but appeasement of the industry, Nivit Yadav, programme director at Centre for Science and Environment, opined.
In May this year, the Bombay High Court had stayed another office memorandum which sought to regularise projects which have commenced without obtaining coastal regulatory zone clearance.
What Prompted The July 7 Office Memo?
The office memorandum, a copy of which has been reviewed by BloombergQuint, relies on a recent NGT ruling in Synochem Organics’ case. Specifically, where the tribunal has noted that "for past violations, the concerned authorities are free to take appropriate action in accordance with polluter pays principle, following due process".
However, the part of the tribunal’s order which doesn’t further the ministry’s cause finds no mention in the office memo.
The NGT in its order had said: “We thus hold that without prior environment clearance, the units cannot be allowed to operate. The State has no power to exempt the requirement of prior environment clearance or to allow the units to function without environment clearance on payment of compensation.”
Besides the NGT order, the office memo relies on various court rulings and provisions of the Environment Protection Act to lay down a standard operating procedure to deal with projects with no prior clearance.
The memo has conveniently cherry-picked observations from court rulings to support its case, Bhat pointed out. As for powers under Environment Protection Act, unless the law specifically says that post-facto clearance is permitted, no subordinate legislation can prescribe it, he said.
Yadav said though the Green Tribunal directed the ministry to come up with a standard operating procedure for dealing with violation cases, post facto clearance cannot become the norm. The memo is basically accepting of the fact that violations are bound to happen and they can be course corrected by paying meagre penalties, he said.
The SOP is definitely needed for all the legacy cases to be dealt with in a more transparent manner. However, the provision for any future violations too to be entertained by the ministry as per the SOP is unfair on the people affected by the project and also makes a mockery of the existing norms.Nivit Yadav, Programme Director, Centre for Science and Environment
July 7 Memo: The SOP
It contemplates a three-step process.
First, whether a project requires closure or revision:
If no prior clearance exists, the project must be asked to close operations.
If no prior environmental clearance exists but is available for an existing/old unit, permissible levels of activity can be allowed.
If no prior environmental clearance was required but is now, restrict to activities for which approval wasn’t required.
As step 2, penalties as per the Act will be determined. Finally, the project will be appraised as per the 2006 notification on Environmental Impact Assessment. As an outcome of this:
If the unit wasn't permissible, it will be closed and demolished. For instance, the memo says, a red industry functioning in ecologically sensitive areas.
If the unit was otherwise permissible but didn’t obtain prior clearance, it’ll need to carry out damage assessment, face penalties as per "polluter pays" principle and undertake a remedial plan.
If the assessment reveals that the project is permissible but not environmentally sustainable, it will be asked to be modified. The project proponent will be asked to submit bank guarantees equivalent to an amount required for the remediation plan.
The memo also lays down penalties for new as well as expansion projects.
An SOP that weighs legacy violation projects and any new violations that may occur in future in the same balance is faulty to say the least, Yadav pointed out.
The penalty on the project too has been kept the same, i.e. 1% of the project cost. This is irrespective of the damage that the project may have caused. The ministry needs to factor in the gravity of violation while levying penalties.Nivit Yadav, Programme Director, Centre for Science and Environment
Bhat said even after the memo is struck down, violators will have to be dealt with individually. Courts may at that stage apply "proportionality" and such other principles and condone the lapse if in fact today the unit conforms to the norms, he said.
The detailed order of the Madurai bench granting an interim stay is yet to be published.