Pollution Laws Imperative, But Can’t Ignore Economy: Madras HC Junks Challenge To Ex-Post-Facto Environ Clearance [Read Order]

The Madras High Court has upheld the Centre’s latest notification providing for ex-post-facto environmental clearance for project proponents as it held that any establishment, which is contributing to the economy of the nation and providing livelihood to hundreds, cannot be shut down only because of failure to obtain prior clearance even if it may not be otherwise causing pollution.

A bench headed by Chief Justice Indira Banerjee dismissed a petition filed by the Puducherry Environment Protection Association, which had challenged the March 14, 2017 notification issued by the Centre providing for environmental clearance for project proponents, who have commenced, continued or completed a project without obtaining clearance under the Environment (Protection) Act.

“The impugned notification does not compromise with the need to preserve environmental purity, but only allows those industries and/or projects which might otherwise have been given prior environmental clearance, but omitted to obtain environmental clearance to operate, on the conditions imposed by the authorities concerned, including their liability under the principle “polluter pays,” the bench held.

The petitioner had contended that the impugned notification gives a go-by to public hearing, which is non-negotiable and also leading to Environment Impact Assessment.  The petitioner also contended that environmental clearance is based on precautionary principle and the notification militates against this basic principle and should be declared arbitrary, illegal and violative of Articles 14 and 21 of the Constitution and the Environment (Protection) Act.

The Centre, in its response, said the petition has been premised on the wrong assumption that all projects which had not obtained prior environment clearance would be given ex-post-facto clearance.

Additional Solicitor General G Rajagopalan said 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.

The government also informed that in cases where the EAC gives a negative opinion, action would be taken against those projects.

Court balances future generation, economic well-being

The bench, in its verdict, balanced protection of future generations necessitating compliance of environmental laws with economic growth.

“There can be no doubt that the need to comply with the requirement to obtain environmental clearance is non-negotiable. Environmental clearance ensures compliance of environmental laws. A project can be set up or allowed to expand subject to compliance of the requisite norms. The environmental clearance is subject to the satisfaction of the existence of necessary infrastructural facilities and equipment for compliance of environmental norms. To protect the future generations, it is imperative that pollution laws be strictly enforced. Under no circumstances can industries which pollute be allowed to operate and degrade the environment.

“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,” it observed.

The bench held the Centre to be within its scope to issue directions to control and/or prevent pollution, including directions for prior environmental clearance before a project is commenced. Such prior environmental clearance is necessarily granted upon examining the project from the angle of environmental pollution. However, one time relaxation and that too only in cases where the projects are otherwise in compliance with or can be made to comply with the pollution norms is, in my view, not impermissible. The notification ought not to be interfered with.

The bench, however, expressly stated that “protection of environment and prevention of environmental pollution and degradation are non-negotiable. At the same time, the Court cannot altogether ignore the economy of the Nation and the need to protect the livelihood of hundreds of employees employed in projects, which as stated above, otherwise comply with or can be made to comply with norms”.