Exempting Earth Extraction For Linear Projects From Environmental Clearance Arbitrary : Supreme Court Quashes Centre's Notification

One of the reasons the Court provided was that there is no specification on how much quantity can be extracted based on this exemption. Moreover, the Court observed that “linear projects” have not been defined, thus making the term very vague. Apart from this, no authority decides whether a project is linear.

The question before the Division bench of Justices Abhay S. Oka and Sanjay Karol concerned the validity of the notification dated March 2020 under the Environment (Protection) Act, 1986, which brought this amendment into force.

Initially, when an application challenging the notification was moved before the National Green Tribunal, it observed that “The exemption should strike balance and instead of being blanket exemption, it needs to be hedged by appropriate safeguards such as the process of excavation and quantum”. Accordingly, while disposing of the application, the Ministry of Environment was asked to revisit the impugned notification. The review filed against this order was also dismissed.

When the matter went to the Supreme Court, the challenged portion of the impugned notification was substituted by a further notification dated 30 August 2023.  

At the outset, the Court considered that the object of the Environmental Protection Act is to protect and improve the environment. Further, the Court noted that before issuing the notification, the public notice requirement for inviting objections was dispensed with. As per the applicable rules, this can only be done in the public interest. However, before the Court, the Government failed to set out reasons for demonstrating the public interest behind not issuing the prior notice.

“We have carefully perused the counter affidavit filed by the MoEF&CC before the NGT. The said affidavit does not deal with Ground J at all. It does not specify or set out reasons for concluding that in the public interest, the requirement of publication of prior notice was needed to be dispensed with. There is no reason to dispense with this important requirement before publishing the impugned notification.”

The Court also derived its strength from Article 21 of the Indian constitution, which guarantees the right to live in a pollution-free environment. It stated that all citizens are major stakeholders in environmental matters.

“The document recording the satisfaction of the competent authority about the existence of public interest and the nature of the public interest ought to have been produced by the Ministry. But no such document was produced. Only one conclusion can be drawn. The drastic decision to invoke sub-rule (4) of Rule 5 was made without any application of the mind. Hence, the decision-making process has been vitiated.,” the Court added.

As stated earlier, the impugned notification was substituted with another subsequent notification. The Court noted that even that is arbitrary. The only addition was that the extraction had to be in compliance with the SOP. However, no authority was specified to issue the SOP. Moreover, there was no provision to enforce the SOP, let alone any restriction imposed on the quantity that can be extracted.

"Hence, on account of the violation of Article 14, item 6 in the impugned notification, as well as the amended impugned notification, will have to be struck down. As noted earlier, the object of the EP Act is to protect and improve the environment. Apart from the illegality committed by non-compliance with sub-rule (3) of Rule 5 of the EP Rules, the exemption granted without incorporating any safeguards is completely unguided and arbitrary. Grant of such blanket exemption completely defeats the very object of the EP Act."

Item 6 provided an exemption for "Extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc."

Lastly, in light of the Tribunal's order asking the government to revisit the impugned notification within three months, the Court noted that this was not complied with. Even though an SOP was filed to that effect, however, it did not refer to extracting ordinary earth for linear projects.

“Therefore, the said SOP can hardly be said to be in terms of what the NGT ordered the Central Government to do in terms of paragraphs 8 and 9,” the Court concluded, setting aside the impugned and the subsequent notification.

Case Title: NOBLE M PAIKADA vs. UNION OF INDIA., Diary No.- 5984 – 2021

Citation : 2024 LiveLaw (SC) 252

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