After mining curb, post-facto forest clearances next?
In the memos, the ministry also laid out penalties for various categories of such violations, and remediation measures where needed
The Supreme Court’s January 2 order staying two office memos of the environment ministry that allow post-facto clearance of mining projects that did not have the required environmental clearance when they commenced work has raised questions about the status of these operations, and also whether the top court could adopt a similar approach while dealing with post-facto forest clearances.
The January 2022 and July 2021 memos detailing the standard operating procedure for handling of projects in violation of the Environment Impact Assessment Act 2006, were aimed at regularising several projects that had broken the law, started project work without clearance or expanded their project without an environmental nod. The goal was to expeditiously get violators under the regulatory regime, according to the memo.
In the memos, the ministry also laid out penalties for various categories of such violations, and remediation measures where needed.
Vanashakti, an NGO based in Mumbai moved SC in 2022 against the SOP which goes against the very principle of prior environmental clearance. “The petitioner was constrained to directly approach SC as the Impugned SOP dated 07.07.21 was stayed by the Madras HC, however Hon’ble SC in Electrosteel Vs Union of India, held that the interim stay granted by the Madras HC vide Order dated 15.07.2021 would have no application in territories beyond the territorial jurisdiction of Madras High Court,” Vanashakti said in a statement. In 2022, the ministry issued another OM stating that the Madras High Court order was not applicable to the entire country but only to the jurisdictional areas of Madras High Court.
“Consequently, though the Impugned SOP dated 7.07.2021 remains for the State of Tamil Nadu, it is operating through the rest of the Country. Thus, in order to avoid the lengthy process of approaching 24 other High Courts so as to get the impugned SOP stayed in all the states, the Petitioner is constrained to approach the SC directly,” the NGO’s statement added.
“This Supreme Court’s order pertains to matters related to environmental clearances granted by the government under EIA Notification 2006. In the clearance of ex post facto cases, the precautionary principle is entirely ignored. Initially, based on the documents submitted as part of the EIA process, the government assesses whether a particular activity should be permitted and how it will affect the environment. Only if the activity is unavoidable and lacks alternatives should it be allowed, and even then, with measures to cause minimal environmental impact. The restoration and polluters-pay principles should only be considered as a last resort when the activity and its environmental impacts are unavoidable and absolutely necessary. What was once an exception has now become standardized through the SOP,” said Debadityo Sinha, Lead- Climate & Ecosystems, Vidhi Centre for Legal Policy.
“It raises questions about how to prevent or restore damages for violations. When such policies set a precedent, they inevitably become common practice. The government is not the owner; they are custodians of forests, and environmental protection is their constitutional duty. We need to examine how this order will impact ex post facto clearances already granted based on the OM once the SC order is available,” he said.
“This is a critical development given that post facto approvals have increasingly been embedded in India’s environment regulatory framework. How the government responds to this legal challenge and the court’s view of it will shape the relevance impact assessment and public participation methods that were designed to be good practice in the investment, planning and operationalisation of industrial and infrastructure projects,” said Kanchi Kohli, legal and environment policy researcher.
Union environment ministry officials said they will have to go through the order before responding to it.
The court’s stay is also important because the ministry continues to grant ex post facto clearances in forest matters also. HT reported on December 28 that the ministry will consider ex-post facto clearance for various non-forest projects that have come up in the Aravallis.
Interestingly, in March 2022, the Supreme Court ruled that ex post facto green clearances can be granted in exceptional circumstances even after taking into account all environmental impacts, setting aside an order of the National Green Tribunal on closure of industries running without prior approval. A bench comprising Justices Indira Banerjee and JK Maheshwari observed that the Environment (Protection) Act, 1986, did not absolutely prohibit the grant of ex post facto environmental clearance.
“Ex post facto environmental clearance should not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors,” the court’s order said while hearing an appeal filed by Pahwa Plastics Pvt. Ltd against an NGT order which said that the firm’s manufacturing units, which did not obtain prior environmental clearance, could not continue to operate.
On Tuesday, a bench of justices BR Gavai and Sandeep Mehta stayed the office memos on NGO Vanashakti’s petition. It sought the government’s response and posted the matter for the next hearing after four weeks.Senior advocate Gopal Sankaranarayanan, who appeared for Vanashakti, told the court that the July 2021 order provided for the SOP for ex-post facto clearance for projects that fall foul of the EIA notification.
Sankaranarayanan said EIA mandates a prior approval before the commencement of any activity. He added this is a “non-derogable” requirement under the law. Sankaranarayanan cited Supreme Court orders seeking to balance the goals of sustainable development and environmental protection.
The court said a post-facto clearance regime could not co-exist with one that required prior clearances.
“The effect of the order of the Hon’ble Supreme Court dated 2/1/2024 staying the O.M dated 28/1/2022 is that the process of grant of ex post facto clearances across the country for all sectors remains stayed,” Vanashakti said in a statement.
“Most lessees got their ex post facto clearances based on this OM. Now if there is a stay then their operations close and the window open for new lessees who could have been regularised is also closed. During this interim period of stay, mineral production in the country will also be impacted. We do not know the exact number of mines that will face this stay order,” said B K Bhatia, Additional Secretary General, Federation of Indian Mineral Industries.
