​Stitch in time: on judiciary and Environment Ministry notifications

Last week, the Supreme Court of India finally struck down as “illegal” two notifications by the Union Environment Ministry that allowed industrial units to set up, expand operations or change their manufacturing practices without following the due process of taking government permission beforehand. Taking ‘prior’ approval is a sacrosanct principle at the heart of the Environment Impact Assessment (Notification) of 2006. On the surface it appeared that the Centre, or the Union Environment Ministry, had instituted a system that made a mockery of this principle, but there was a rationale, even if it was flawed to some extent. In March 2017, the body issued a notification providing a “one-time” six-month window for industries that did not have the right environmental clearances, to apply for one. In 2021, it instituted a ‘standard operating procedure’ that in effect allowed projects in violation of the laws, but which could not avail of the six-month window, to apply — albeit at the cost of heavy fines — for regularisation. Moreover, all these significant changes were being issued through executive orders, rather than any attempt at amending the underlying Environment Protection Act (EIA), 2006, through Parliament.

The Centre’s reasoning was three-fold. First, the process for regularising projects had already been initiated by the United Progressive Alliance government in 2012 and 2013. These were, however, struck down by the Jharkhand High Court and the National Green Tribunal on procedural grounds, and not that these projects were irredeemably violative. Second, demolishing functioning plants that were contributing to the economy and employment could exacerbate pollution and be disruptive. The Centre cited examples of various disputes involving copper mines to pharmaceutical companies where the courts had agreed that a “balanced” approach was necessary in cases involving violations. Finally, it argued that it had put in place a system whereby the industrial units seeking to be regularised would have to pay fines for the period that they had functioned in violation. The Court in its final verdict has rightly, as previous courts have, emphasised the principle of “prior” clearance, though its action may be a little late as it has clarified that companies that had regularised themselves under the 2017 and 2021 orders would be “unaffected” by the judgment. That thriving industrial units in violation of the laws mushroomed is a testament to the collective failure of regional environmental boards to enforce laws. So it stands to reason that making these illegal units pay, under the purported new procedure, would have been a fruitless exercise. The judgment should ideally nip any “crafty” attempts by future governments to condone violations in the name of the economy though it must also trigger on-ground enforcement.