Grant Of Ex Post Facto Environmental Clearance Permissible In Exceptional Circumstances : Surpeme Court

The Supreme Court reiterated that the grant of ex post facto environmental clearance in exceptional cases is not impermissible.

Ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations, the bench of Justices Indira Banerjee and JK Maheshwari observed.

In this case, the National Green Tribunal Act 2010 had refused the plea for closure of a Common Bio-Medical Waste Treatment Facility on the ground of alleged non-compliance of the provisions of the Environmental Impact Assessment Notification 2006. It was observed that when the Bio-Medical Waste Treatment facility was being operated with the requisite consent to operate, it could not be closed on the ground of want of prior Environmental Clearance. 

In appeal, the Apex Court bench noticed that the Environmental Protection Act does not prohibit ex post facto Environmental Clearance. Referring to various decisions on this aspect, the bench made the following observations:

need to comply with the requirement to obtain EC is non-negotiable

There can be no doubt that the need to comply with the requirement to obtain EC is non-negotiable. A unit can be set up or allowed to expand subject to compliance of the requisite environmental norms. EC is granted on condition of the suitability of the site to set up the unit, from the environmental angle, and also existence of necessary infrastructural facilities and equipment for compliance of environmental norms. To protect future generations and to ensure sustainable development, it is imperative that pollution laws be strictly enforced. Under no circumstances can industries, which pollute, be allowed to operate unchecked and degrade the environment.

 Should ordinarily not be granted routinely, but in exceptional circumstances 

Ex post facto environmental clearance should ordinarily not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors. Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularization of operations by grant of ex post facto approval, and the establishment concerned otherwise conforms to the requisite pollution norms, ex post facto approval should be given in accordance with law, in strict conformity with the applicable Rules, Regulations and/or Notifications. In a given case, the deviant industry may be penalised by an imposition of heavy penalty on the principle of 'polluter pays' and the cost of restoration of environment may be recovered from it.

..cannot be declined with pedantic rigidity

EP Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible...Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations.

Case details

D Swamy vs Karnataka State Pollution Control Board | 2022 LiveLaw (SC) 791 | CA 3132 OF 2018 | 22 September 2022 | Justices Indira Banerjee and JK Maheshwari

Headnotes

Environment (Protection) Act, 1986 - Environmental Impact Assessment Notification 2006 - Ex post facto Environmental Clearance - EP Act does not prohibit ex post facto EC. Some relaxations and even grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with environment norms, is not impermissible - Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operation. (Para 46-50)

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