Plea In Delhi High Court Against 'Ex Post Facto' Environmental Clearance; Notice Issued To MoEF

The Delhi High Court today issued notice on a PIL challenging an office memorandum issued by the Ministry of Environment, Forest and Climate Change providing for ex-post facto Environmental Clearance (EC), i.e., the opportunity to obtain an EC for the projects which have already begun.

The plea has been filed by Nishtha Shukla, claiming to be a student of architecture who is environmentally conscious, through Advocates Chirag Jain and Shobhit Shukla.

It states that the impugned OM dated July 7, 2021 is passed without jurisdiction and its continued enforcement shall be violation of law established under Environment Impact Assessment Notification 1994 and 2006 which provide for a mandatory Environmental Clearance (EC) to be taken prior to the initiation of any work on a project. Further, it will be a violation of the fundamental rights of the people under Article 21 of the Constitution of India.

It is submitted that deterrence of closing down of operations and heavy cost to be paid for the destruction caused to the environment of a particular site is very crucial for the protection of environment from violators. However, the impugned office memorandum provides a backdoor to the violators by allowing the projects to obtain EC if they were at all permissible in the first place.

Further, it is alleged that the impugned OM is in teeth of the law established by the Supreme Court in Alembic Pharmaceuticals Ltd. vs. Rohit Prajapati & Ors., where it was categorically held that the concept of 'ex post facto' EC is against the fundamental principles of environmental jurisprudence.

Reliance is also placed on Common Cause vs. Union of India, where it was held that the possibility of getting an ex post facto EC was a signal to the mining leaseholders that obtaining an EC was not mandatory or that it if was not obtained, the default was retrospectively condonable.

Furthermore, it is submitted that the Respondent did not have the authority to pass this OM as it substantially changes the law as has been laid down under the EIA notification 2006, which is a subordinate legislation and cannot be overruled by any office memoranda.

Notice was issued on the plea by Division Bench of Chief Justice DN Patel and Justice Jyoti Singh.

Case Title: Nishtha Shukla v. Union of India