Is the apex court backtracking on environmental principles?
The article has been authored by Tarika Jain is a senior resident fellow with the climate & ecosystems team, Vidhi Centre for Legal Policy, New Delhi.
In 1987, the Supreme Court categorically prioritised life, health and ecology over unemployment and loss of revenue in the case of M.C. Mehta v. Union of India [(1987) 4 SCC 463]. Now, over three decades later, the apex court appears to have revisited this view, carving out subtle exceptions to its application. On March 25, the court held that a technical irregularity should not come in the way of the functioning of an establishment which contributes to the economy and provides livelihood, irrespective of whether or not the unit actually causes pollution. The technical irregularity in question, however, happens to be the failure by a business to obtain prior environmental clearance (EC) in accordance with the provisions of Environmental Impact Assessment (EIA) Notification, 2006, a legal mandate that enshrines the various environmental principles which the court has itself propounded over the years.
The recent judgment comes in the case of M/S Pahwa Plastics Pvt. Ltd. & Anr. Vs. Dastak Ngo & Ors [Civil Appeal No. 4795 of 2021] in an appeal filed by two micro, small and medium enterprises involved in the manufacturing of formaldehyde, an organic chemical. The appellants had complied with the mandates of Water (Prevention and Control of Pollution) Act, 1974 and Air (Prevention and Control of Pollution) Act, 1981, but had not obtained an EC as neither they, nor the Haryana State Pollution Control Board (HSPCB), were sure whether such an EC was actually needed in this particular case.
The process of EIA has been established under the Environment (Protection) Act, 1986 to give effect to the precautionary principle. Risk of harm from an action should be averted when there is scientific uncertainty on its consequences, and thus, no activity shall be undertaken, unless a prior EC is obtained. The granting of EC involves a rigorous four-stage process, including a detailed study into the potential impacts of the activity on the environment and a public consultation to address the concerns of the relevant stakeholders. Only once the authorities are satisfied with the suitability of the activity as regards the environment, and appropriate conditions are stipulated for the compliance of the project proponent, can an EC be granted. It is a mandatory process that safeguards the right to life of local communities and the interests of the environment. The environment encompasses water, air and land and inter- relationship of these with human beings, other living creatures, plants, micro-organism and property. In contradistinction, the Water Act and Air Act are concerned specifically with water and air as natural resources that must be protected from pollution. So, while complying with the two Acts ensures that the industry is not polluting, the prior EC indicates that the industry is environmentally sustainable as a whole.
It is non-compliance of this mandatory provision, which the court has called a mere ‘procedural lapse’ and a ‘technical irregularity’. The court was of the opinion that by merely obtaining the consents under the Water and Air Act, the activities were compliant with environmental norms, without accounting for the larger repercussions of these activities on the local communities and ecology. The court has set a worrying precedent that paves the way for regularising ex-post facto ECs in other cases of violation.
The court finds the justification for such a conclusion in the General Clauses Act, 1897 and the prior decision in the case of Electrosteel Steels Limited v. Union of India [2021 SCC online SC 1247]. It states that the environment ministry has the power to modify the 2006 Notification, since it had the power to enact it in the first place. However, can any modification of law occur simply by permitting it to not be executed by the letter? Can any amendment go against the very scheme of the parent Act? Further, the facts in the Electrosteel case were slightly different from the present case. There an EC had been obtained for the project, but the site had been shifted without an appropriate modification in the EC. In the present case, there is no EC obtained at all. In both the cases, these violations were termed as technical irregularities.
In an earlier case in 2004, faced with the question of whether or not to shut down mining operations, the court once again weighed economic interests against environmental damage. It decided that when in doubt protection of the environment would have precedence over the economic interest and that anticipatory action will have to be taken to prevent harm. This time around, however, the court has chosen to depart from its legacy and imply that the environment is not its priority. The court would not have taken ignorance of law as an excuse and it certainly would not have assumed that an industry was non-polluting and, therefore, environmentally sound without referring to any scientific evidence. When the world is moving towards sustainable development goals and environmental rule of law, our apex courts perhaps needs to have a moment of reflection on its role in shaping the environmental regime in the country in the future.
(The article has been authored by Tarika Jain is a senior resident fellow with the climate & ecosystems team, Vidhi Centre for Legal Policy, New Delhi.)