Supreme court of India
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This article is written by Nishka Kamath, a student at Nalanda Law College, University of Mumbai. It seeks to discuss the New Draft Environmental Impact Assessment (EIA) Notification of 2020 along with the potential consequences and its impact on the environment. It also throws light upon the ex-post-facto clearance under the draft and views of the courts including that of the Hon’ble Supreme Court about the same. Moreover, the fundamental principles of environmental jurisprudence with several case laws have been discussed at length in this article. 

Introduction 

Time and again, the Latin phrase “Ex post facto” is widely used these days, especially with the notification of the Draft of Environment Impact Assessment (EIA) 2020. The meaning of this Latin phrase as per the Merriam-webster dictionary is ‘done, made, or formulated after the fact’. This controversial draft provides a way for those who implement projects or activities without obtaining prior- environmental clearance, to apply for it in the future. 

The foremost EIA Notification according to the Environment (Protection) Act of 1986, was presented in 1994, which made Environment Clearance (EC) compulsory for the growth of any activity or for setting up a new project listed in Schedule 1 of the notification. This draft was then superseded by the 2006 notification and now, the new notification of 2020 is issued by the Central Government. Similar to the 2020 notification, the aforementioned notifications were also provided by the Central Government while making use of their power under the Environment (Protection) Act, 1986 for taking essential steps for safeguarding the environment. Every notification has proceeded with an identical strategy- before beginning any task or activity it requires authorization from the government agency, the Ministry of Environment, or a specially constituted state-level authority. 

The approval- known as ‘environmental clearance’ (EC) is either assigned or not assigned based on the Environmental Impact Assessment (EIA) studies, viewpoints obtained through public consultation, and an expert assessment of all the suitable documents and details. The approval is followed by certain terms for reducing the environmental and social impacts of the project and to improve the resulting state of affairs. Thus, fulfilling these terms is crucial for the regulatory process to be relevant. 

In this fresh draft, it has been proposed that post-facto environmental approvals will be granted if they meet certain conditions, which is a repetition of a March 2017 notification for those projects which are carried on without clearance. This notification was circulated after the procedures put forth by the Central government in 2012 and 2013 were quashed. Previously, a lot many instances have been encountered where the operations of the projects were carried on without prior environmental clearances and such operations have been overlooked. 

To understand the draft of EIA 2020 and the Supreme Court’s say upon it, let us first dive into the fundamentals of EIA and EC.

Environmental Impact Assessment (EIA) and Ex post facto Environment Clearance (EC)

The environment is the burning topic of the day at local, national as well as international levels. Undoubtedly, the standard of living of people has risen with the vast natural resources, but with the passage of time and the heedless activities of humans, the menace it has caused is inexplicable. An escalation in population pressure day after day, inefficiency in managing material and energy resources, large-scale deforestation, poor effluent dumping from industries, ineffectively handling lethal chemicals, activities relating to building areas for settlements, over-grazing of lands and urbanization, etc have resulted in causing a great threat to the environment and in the creation of ecological imbalance. Environmental pollution is widespread all over the world leading to biological, physical, chemical, psychological, and sociological hazards. The concept of “Environment Impact Assessment (EIA)” plays a pivotal role in the progress of any country in such conditions. The preliminary environmental assessment will help protect the environment and to promote economic growth. It is one of the crucial components of environmental management. 

An EIA refers to the possible impact – positive or negative- which a proposed project may have on the environment. Simply put, it is a method by which the probable impact of a proposed project on the environment and ecology is assessed prior to clearance is given to a project by the competent authorities. Thus, the “pros” and “cons” of the environment are weighed before its execution. If from the environmental angle, if the merits of the project outweigh the demerits, such a project can be labelled to be “environmentally justified”. The hazards and the scope for the launch of any project or activity should be analyzed and measured to make any new decisions. The planners must know the actual condition and review before establishing a new business and make long-term decisions accordingly. An EIA aims to foresee the environmental impacts in the preliminary phase of planning a project and design, discover strategies and mechanisms to abbreviate the deleterious or harmful impacts, shape projects that are suitable to the local environment, and provide the decision-makers with predictions and options. 

The approval- known as ‘environmental clearance’ (EC) is a method to get clearance from the regulatory board for specific projects that lead to environmental pollution, which can either be approved or disapproved based on the fulfilment or non-fulfilment of the regulatory process.

Vide a study by The Chennai Solidarity Group in 2013, IIT Madras made construction in over 52 acres of land by chopping down 8100 trees and intents to construct on another 58 acres of land further which allegedly will amount to 10,000 trees being axed down. This work was carried out without any prior environmental clearance. In due course, post-facto clearance was granted to new buildings and constructions. The Char Dham Pariyojana for expanding the road to Badrinath and Kedarnath consisted of an expansion of 900 km of roads, so the Ministry of Road and Transport divided this project into 53 smaller projects that comprised of less than 100 km each, in order to evade the EIA’s application. This project has already led to massive disasters according to the report which was submitted to the SC several months ago. Also, the construction of Koodankulam Nuclear Power Plant’s units 1 and 2 was carried on without any mandatory clearance which is a requirement as per the Coastal Regulation Zone Notification of 1991 and 2011. 

It is notable that, the SC in 2020 set aside the National Green Tribunal order issued by MoEFCC in 2002, stating that “Ex post facto” Environmental Clearance is not in compliance with the primary principles of environmental jurisprudence. The Court further said that environmental law cannot approve/support the concept of ex post facto clearance.

Notification of EIA, 2006

The main aim of this notification was to deal with the drawbacks of the old notification of 1994. The major change brought in by the 2006 EIA notification is that an attempt has been made to decentralize the powers to the State Government. Previously, all the projects for environmental clearance would go to the Central Government, but now, as per this notification, a huge number of projects would go to the state subject to its size/capacity/area. Although with the issuance of this new notification, the stress on the Central Government will be reduced, this provision can be used for personal gains, as many State Governments are actively pursuing industrialization for their states. This notification also failed to address an important issue of whether there will be any sort of monitoring of state-level projects by the Central Government or not. The 2006 Amendment of the EIA Notification included the following:

  • Classification of Project Clearances: The notification categorized the developmental projects in two categories:

○ Category A (National Level Appraisal): In this category,  the projects are appraised by the Impact Assessment Agency (IAA) and the Expert Appraisal Committee (EAC).

○ Category B (State Level Appraisal): In this category, the projects are provided clearance by the State Level Impact Assessment Authority (SEIAA) and the State Level Expert Appraisal Committee (SEAC). 

  • Establishment of Various Stages: With the 2006 Amendment, four stages were set in motion in the EIA Cycle which are- Screening, Scoping, public hearing, and Appraisal. 

○ Category A projects need not go through the screening process as they need a compulsory environmental clearance. 

○ Category B projects need to go through a screening process. They are further categorized into B1 (those that compulsorily require EIA) and B2 (those that do not require EIA).

  • Projects requiring Compulsory Clearance: Various projects like mining, river valley, infrastructure related to roads, highways, ports, harbors, and airports,  amongst others are officially required to get environment clearance. 

Environment Impact Assessment (EIA) Draft, 2020

As stated above the MoEFCC has presented the Draft of EIA Notification in 2020, intending to replace the 2006 EIA Notification, which, in turn, was a replacement of the 1994 Notification. The Union Environment Minister, Prakash Javadekar stated that the purpose of the 2020 draft notification is to merge all the 55 amendments and 230 office memos issued since 2006. This draft has alleged to lighten the principles and laws relating to the protection of the environment. The government then guaranteed that it will try its level best to strike a balance between the environment and the development issues.

Primary suggestions of the 2020 Draft 

  • Reduction in the duration of public hearings 

One of the main steps of the EIA Mechanism is the participation of the public. This draft proposes to shorten the public hearings’ notice duration from 30 days to 20 days. Having said that, taking into consideration the development of the internet and cellphones, the MoEFCC asserts that it is “moving with the times”.

  • Exemption of projects 

By categorizing projects into categories of A1, B1, and B2, a host of projects are excused from public scrutiny. Here, the projects belonging to the B2 category do not need the mandatory Environmental Clearance (EC), as opposed to the projects of the A1 and B1 categories. The projects under the exempted categories include-

> Hydroelectric projects up to 25 MW,

> Cement plants of small and medium-range, 

> Acids apart from ammonia or phosphoric, sulphuric acid, inter alia.

  • Yearly submission of reports 

This draft recommends the submission of reports based on an annual basis, whereas, as per the 2006 notification, reports had to be submitted every six months.

  • Preparation of the report solely by the project proponents 

The project proponents will self prepare the submission of the compliance report. Thus, if oversight and review are absent, the information of the project presented could be inaccurate.

  • No public reporting for non-compliance 

The general public does not have the authority to report violations and non-compliance, as per the 2020 EIA Notification. On the contrary, the reports from the violator-promoter, the authority of the government, Appraisal Committee, or Regulatory authority will be only considered by the Government.

  • Post-clearance compliance 

Once a project is authorized by the competent authority, the proposed projects must be in compliance with a  certain set of rules that are set out in the EIA report to guarantee that no further environmental change will occur.

  • Penalty for organizations 

Any organization that is found to have infringed the conditions of their establishment, will have to pay a fine if they want to get the clearance.

  • Ex post facto clearance concerning EIA 

The questionable Environmental Assessment Draft of 2020 paves a way for those projects that are run without seeking prior-Environmental Clearance,  to apply for them subsequently. To grant “post-facto clearance” is yet another important proposal in the 2020 Draft. The projects that are carried on without environmental clearance, can be standardised or permitted to apply for clearance. In April 2020, the judiciary in a leading case (discussed in depth further) held that “environment law cannot countenance the notion of an ex post facto clearance.”

Issues involved in the Draft of 2020 Notification

  • Inviting the floodgates of contraventions to open

The environmental lawyers are of the opinion that the post-facto clearance of projects may encourage the industries to start operations without paying heed to the clearance and then eventually regularise the project by payment of fines, which, in turn, will open the floodgates of contraventions. 

  • Boosts the strength of the government at the expense of reducing the strength of the public

The Draft does not provide any solution for the political and bureaucratic stronghold on the EIA process, and thereby on the industries. Rather, it suggests that the power of the government’s discretion be intensified while restricting the participation of the public in protecting the environment. Furthermore, the draft, by restricting public participation, is incompatible with the protection of tribals’ rights, inter alia. 

  • Lenient clearance for strategic projects 

Although projects related to national defence and security are naturally considered strategic, it is in the ambit of the government to determine which other projects should be labelled “strategic”. This draft states that- No data of such projects shall be placed in the public domain. This is an opportunity for clearance of any project that is deemed strategic by the Government, without needing to justify the reason behind doing so. 

  • Lower the time duration, lesser the awareness

A reduction in the motive period for a public hearing from 30 days to 20 days will only make it tougher to study the draft EIA Report, especially when it is not widely accessible or submitted in the local languages. In addition, time reduction would be problematic in areas where information is not readily available or where people are not well aware of the procedure itself.

  • Not in compliance with the International Frameworks and Conventions 

Environmental governance has been significantly bolstered by India’s active participation in the United Nations (UN) Conference on Human, Environment and Development in Stockholm in 1972, the Rio Summit in 1992, the United Nations Framework Convention on Climate Change (UNFCCC) and the Paris Climate Accord. After pledging faithfulness to these global environmental instruments and now recommending to weaken its EIA regime at a national level, India is in a position of having inconsistent beliefs. Failure to comply with commitments made in international negotiations and treaties will undermine India’s position as a world leader in environmental governance and climate politics.

Recent instances of poorly done EIA

An off late example of poorly done EIA can be seen in Goa’s projects which are carried on within the Bhagwan Mahaveer Wildlife Sanctuary and Mollem National Park. The people of Goa have been protesting against this project since June 2021. The issues have been raised in the infrastructure projects of- expanding the National highway into a four-lane highway, doubling the already existing railway line, and the construction of a transmission line of about 3.15 km. The environmental impact of the same is as follows:

  1. The EIA was done poorly in all 3 projects. For instance, the National Highway covers over 33 hectares of land, but only 11 hectares were considered for the assessment. In order to avoid any issues in clearance, the projects were broken down into small pieces for assessment. 
  2. The construction process was operated without the grant of environmental clearance. 
  3. The residents of Goa would be exposed to toxic fumes and their safety will be in jeopardy. 
  4. The project is within a protected forest area and is home to around 238 species of birds and 722 species of plants and mammals. 

Another incident is when oil wells in the Tinsukia district of Assam burst into flames in June 2020. This incident took place at a location situated only a few kilometres away from the protected forest. The process of development and modification was carried out without obtaining a fresh environmental clearance. 

Fundamental principles of environmental jurisprudence

  1. Sustainable development

The principle of sustainable development is the most crucial principle that has developed from international activity on the environment. This concept has its origins in the mid-twentieth century when it occurred to the world that the stress which development was putting on the environment was not acceptable. This concept has taken a concrete stage because natural resources are frequently under danger and degradation. Numerous natural resources in this world are non-renewable, for instance, fossil fuels and minerals. Once a specific amount of such resources is used, the entire amount stands reduced permanently.

The World Commission on Environment and Development, 1987 considered sustainable development as the ability to meet the needs of the current generation without compromising the ability of the forthcoming generation to meet their needs. In short, all that sustainable development needs is that we use these resources with extreme caution, respecting the “rights” of future generations. In fact, any economic activity carried on without a healthy balance between the natural resources, its ecology, and the environment shall result in sustainable development. Hence, the Earth, ecology, and the environment are the three primary concerns of sustainable development.

The U.N. Division for Sustainable Development has enlisted more than 40 areas that fall under the ambit of sustainable development, some of them include:

> Biodiversity

> Forests

> Industry, etc.

The concept of Sustainable Development is not an easy topic to define. However, it has grown in size since it was born. The Supreme Court explained the concept of Sustainable Development in the case of Narmada Bachao Andolan vs Union of India (2000), wherein it observed that “Sustainable Development means what type of extent development can take place which can be sustained by nature or ecology with or without mitigation.”

In yet another case- Vellore Citizens Welfare Forum v. Union of India (1996), the Supreme Court discussed the concept of ‘sustainable development’ which has been accepted as a part of the law of the land. Nonetheless, the ‘precautionary’ principle and ‘polluter pays’ principle are fundamental characteristics of sustainable development. 

  1. The Precautionary Principle

The Precautionary Principle as the name suggests requires the officials in charge to anticipate, prevent and attack the reason for polluting the environment. The deficiencies and limitations of science form the real basis of the Precautionary Principle. This rule is established in the salutary theory that says, it is better to err in the support of care and protection than in the opposite direction where any harm caused to the environment may be impossible to be reversed. In simple terms, a person should always take steps in anticipation of environmental damage, rather than to rectify such damage once it is inflicted. As the old saying goes, “Prevention is always better than a cure.” 

One of the most worthwhile outcomes of this principle is that the burden of proof in matters of a project or activity causing threats to the environment depends upon the person who is proposing to venture the act in question. This technique is established on the accepted fact that those who challenge a proposed project would many a time find it tough to carry the onus of proof off their shoulders. So, it is for the party to alter the status quo, i.e. the party who wished to implement the project/activity must provide sufficient proofs to show that the environment and ecology will not be substantially impacted by this project or activity.

The Supreme Court of India in the year 1969 which is much before the incorporation of Article 51A, observed that it is a fallacy to think that according to the Constitution of India, there are only rights and no obligations/duties. The provisions of Part IV of the Constitution authorizes the legislature and the Government to impose several obligations on its citizens, as observed in the case of Chander Bhawan v. State of Mysore (1969). However, today with a cumulative effect of Article 48A and 51A(g) it appears that the “State”, as well as the “citizens” of the country, have a responsibility to conserve, preserve, protect and improve the environment. In the case of State of Tamil Nadu v. Hind Stone (1981), an observation was made by the Supreme Court that the rivers, forests, minerals, and other such natural resources are the natural wealth of a nation and that these resources cannot be “frittered away and exhausted” by a single generation. The Precautionary Principle makes it compulsory for the State Government to anticipate, avoid and attack the causes relating to the degradation of the environment. 

  1. The Polluter pays Principle

As seen above, the precautionary principle tries to anticipate and avert environmental pollution. But, this is not always feasible. So, in such cases, the Polluter Pays Principle comes into action and dictates that the amounts for remedying/restoring the environment must be paid for either by the person or undertaking who has caused such damage. Under the principle of ‘Polluter pays’, absolute liability or damage to the environment extends not only to compensate the victims of pollution but also, at the cost of restoring the degradation of the environment.  Thus, the polluter must not only compensate the victims of pollution but also pay the expenses of mending the environmental deterioration. 

Even though the principle of Polluter Pays has been actively applied for more than 3 decades, there is still some discourse about the exact scope of this principle, especially, the limitations of such payments. There is one unreasonable rule which states that this principle permits the polluter to freely pollute the environment considering that he is ready to pay for the damage caused and this rule is globally repudiated. This meaning, if given to the rule, would lead to a total misrepresentation of its original meaning and scope. To put it in another way, the principle should not be read to mean “Pay and Pollute”. 

In 1996, the Supreme Court in the Vellore Citizen Welfare Forum’s case had laid two crucial principles to check environmental damage.

  • The first principle was the “Precautionary Principle”, which is explained above.
  • The second principle is the “Polluter Pays” principle. Here, the Hon’ble Court said that rectifying the harm caused to the environment is a part of sustainable development and the violator is liable to make payment to an individual who has suffered and also compensates for restoring the damaged ecology. The Court further stated that these principles are now the law of the land and then asked the Central Government to establish an authority u/s 3(3) of the Environment (Protection) Act. Here, the authority was instructed to frame schemes for restoring the destruction caused and the schemes were to be executed by the government. 

In yet another case (Ramji Patel v. Nagrik Upbhokta Marg Darshak Manch (2000), the Supreme Court restated the principle and said that a polluter is duty-bound to compensate for the harm caused to the environment. It observed that, as there is a violation of Article 21 of the Constitution, the Court can award compensation for renewing the ecological balance as well as to the victims who have undergone this disturbance.  

In the famous case of M.C. Mehta v. Kamalnath (1996), also known as the Span Motel Case, the Supreme Court gave directions to the motel to compensate for the restitution of the environment and ecology as it had hampered the natural flow of River Bees for commercial purposes.

Interesting Fact: The Doctrine of Public Trust (discussed in depth below) was successfully transplanted into the legal system of India by this very judgment. This Doctrine paved a path for other subsequent judgments like Shree Santh Dasganu Maharaja Singh v. Indian Oil Corporation (2018) and M.I. Builders v. Radhey Shyam Sahu (1999)

In another case, known as the Calcutta Tanneries Case (M.C. Mehta v. Union of India (1996), the Court directed a pollution fine of Rs. 10,000 each on all the tanneries in Tangra, Tiljala, Tupsia and Pagla Dangla be paid.

Similarly, the High Court of Rajasthan in Vijaya Singh v. State of Rajasthan (2003), presided that based on the principle of Polluter Pays, each polluting unit must pay 15% of its turnover as injuries caused to the environment.

Thus, judicial activism in this sphere is the need of the hour, especially when the legislature is lagging in bridging the lacunae in the existing mechanism and the administration is even now not completely equipped to meet the challenges. In the succeeding years too, the courts will have to be involved in the execution and effective determination of environmental policy for the elected/branches of Government to become accountable to the law and the public. 

  1. The Public Trust Doctrine 

A theory was developed by the ancient Romans known as the Doctrine of Public Trust. This doctrine is a part of sustainable development and it states that resources like air, sea, forests, etc. can never belong to an individual i.e. there can be no private ownership for these resources. These resources are a gift from nature and should be made available to everyone, irrespective of their culture, religion, economic or social status or religion. 

In the Span Motel Case (stated above) it was held by the Supreme Court that the Doctrine of Public Trust is a part of the laws of India and implies three restrictions on the Government authority that are as follows:

(i) Such property must not be used solely for public purposes, but must also be made available for usage to the local public.

(ii) Such property cannot be sold to private users, even if a fair amount of cash equivalent to the property is provided. 

(iii) Property must only be maintained for certain types of uses only. 

In the case of M.I Builders v. Rather Shyam Sahu (1999), the Supreme Court held that if an underground shopping complex is given permission for construction below a public park, it would be a violation of the Doctrine of Public Trust. In this case, the Lucknow Nagar Mahapalika gave permission for the construction of an underground shopping complex beneath a park under the name- Jhandewala Park (which was of historical importance as affirmed by the Mahapalika) and its construction work was mostly completed, but the High Court then quashed the related resolutions that gave approval for building the complex. Thus, the Court ordered the demolition of the structures and the restoration of the park by issuing a writ of Mandamus. The Court further said that the park should be restored in its original position within a period of three months from the date of judgment and until then precautionary measures were to be taken and necessary safety provided to the public and the users of the park. 

View of the Supreme Court on Environment Clearance (EC) 

  1. Electrotherm (India) Limited v. Patel Vipulkumar Ramjibhai (2016)

In this case, the Court did not order the closure of the unit without a public hearing to determine the consequences of granting Environmental Clearance (EC) for expansion. The Supreme Court held that, in the interest of being just, it is appropriate to change the nature of the public consultation/public hearing requirement from pre-decision to post-decisional.

  1. Common Cause v. Union of India (2017)

The Supreme Court’s judgment and observations in the Odisha illegal mining case are among the most notable ones in safeguarding the environmental laws. A petition that asked for legal intervention to cease all mining leases in Odisha, highlighting the observations of the report established by Justice M.B. Shah Commission, was filed by the non-profit Common Cause which was heard by the Court in 2012. In 2010, this Commission was set up by the Central Government to look into illegal mining of iron ore and manganese ore in the county and reported large-scale illegal mining, especially in Odisha. 

The Court took notice of these illegal mining activities which were destroying the environment and forests and perhaps putting the tribal people of that area in a state of misery, and thus, issued an order that these activities be suspended. The Court further added that it is certain that the granting of EC cannot be considered as a mechanical exercise. It can only be permitted after due diligence and care, as damage to the environment can have long-lasting effects. The Court held that granting an ex-post-facto environmental clearance could be harmful and may cause irreparable degradation of the environment. As per the Supreme Court, the concept of an ex-post-facto or a retrospective EC is totally alien to environmental jurisprudence, including the EIA 1994 and EIA 2006.

  1. Alembic Pharmaceuticals v. Rohit Prajapati and Ors (2020)

In this case, a challenge was made in the Supreme Court for a circular dated 14 May 2002. It was decided that an approach must be adopted by the Court that will hold the industries accountable for operating without environmental clearances in the past, rather than ordering the termination of operations. The Court, here, applied the Doctrine of Proportionality and instructed the payment of damages for disobedience with a binding legal regime. The Court granted reimbursement as a facet of conserving the environment according to the precautionary principle. 

The Supreme Court upheld the 2016 order of the National Green Tribunal setting aside a circular issued by the Union Ministry of Environment and Forests on 14th May 2002 which provided for the grant of ex post facto environmental clearance. The Court was in agreement that the circular was unsustainable in law and that “environment law cannot countenance the notion of an ex post facto clearance”. In short, the circular, if granted, would have contradicted both the precautionary principle as well as the requirement of sustainable development. This would contradict both the precautionary principle as well as the need for sustainable development. 

The Court followed the decision held in the case of Common Cause v. Union of India (started above), which stated that EC’s cannot be granted post-facto. It was held that instructions for closure of industries was disproportionate and thus, the industries be allowed to resume, provided that the compensation was paid. The Court instructed the industries in fault must pay a compensation of 10 crores each and said that the amount must be deposited with GPCB and shall be used for the restoration of the environment where the industries operated. In short, the Court was of the decision that ‘ex post facto’ Environmental Clearance (EC) is against the basic principles of environmental jurisprudence 

Ease of business and the goal of environmental protection – conflicting interests of the government

The foremost goal of the government in relation to the environment is to achieve overall protection of the environment and ecology. Whereas, the secondary goal is to focus on the ease of business. But it is disheartening for the government to pay more attention to the secondary aim of ease of the business and not the primary one. Here, the government seems to fully trust those industries that have a poor track record and whose record is not good enough to be taken into confidence. 

Paving the way forward

The draft notification of 2020 contains a clause that is specifically dedicated to defining several terms related to EIA. It may be helpful if such a clause combines the EIA rules and has the potential of mitigating some vagueness in the present law.

> The Ministry should not reduce the time for public consultation, but instead, should focus on ensuring access to information and awareness of public hearings and their impact on the overall Environmental Impact Assessment (EIA) process. 

> In order to improve the ease of doing business, the government should reduce the average delay of 238 days in granting environmental permits arising due to bureaucratic and complicated laws. 

> Grow now, sustain later should not be the policy, as this concept is dangerously contradicting the concept of sustainable development.

Conclusion

All in all, it wasn’t expected that the Government would disregard the main objective of protecting the environment to achieve an alternative objective that focuses on the convenience of carrying out a business with ease. Taking into consideration that the regulatory reforms were in order, the 2020 Draft notification was an opportunity for the Environment Ministry to make the 2006 notification stronger in ways that would prevent the deterioration of the nation’s environmental conditions. Ergo, the 2020 notification carries on a not-so-strong regulatory framework. 

Also, several relaxations have been given in the 2020 Draft Notification. An important aspect is that of the ex-post-facto Environmental Clearance. As stated above in the Ambelic Pharmaceuticals case, it was said that “Ex-post-Facto Environmental Clearance is unsustainable in law.” Moreover, ex-post-facto Environmental Clearance (EC) is contradictory to the basic principles of environmental jurisprudence. 

The future of environmental governance appears to be dreadful taking into consideration the Draft Notification of 2020 which intends to allow post-facto clearances. The rule of EC will be reduced to a mere formality if these patterns of post-facto clearances keep growing. 

Thus, we can conclude by saying that, if the Draft of EIA will be passed in the present form, it will cause a serious problem to the environmental governance in India by invalidating the precautionary principle, diminishing the due diligence process, and boosting the discretionary power of the government while restraining the engagement of the people to protect the environment. Moreover, the 2020 Draft is against the recently developing doctrine of non-regression.  

References

  1. Book by Prof. Pathan on Environmental Law (Pg. 5-11)
  2. Book by Prof H. D. Pithawalla on Environmental Law (fifth edition) [Pg. 35-40]
  3. https://www.jurist.org/commentary/2020/05/sushant-singh-environmental-clearances-india/
  4. https://www.theindiaforum.in/article/eia-2020-two-steps-back 
  5. https://www.thehindu.com/sci-tech/energy-and-environment/the-hindu-explains-what-are-the-key-changes-in-the-environment-impact-assessment-notification-2020/article32249807.ece/amp/ 
  6. https://idsa.in/issuebrief/indias-environment-impact-assessment-ojamir-080221 
  7. https://www.drishtiias.com/to-the-points/paper3/environmental-impact-assessment-eia-draft-2020
  8. https://www.sciencebeingjournal.com/sites/default/files/03_0901_EIA.pdf  
  9. https://www.annalsofrscb.ro/index.php/journal/article/view/2832/2356 
  10. https://www.indialegallive.com/constitutional-law-news/courts-news/sc-sets-aside-ngts-directions-regarding-ex-post-facto-environmental-clearance/ 
  11. https://www.legalserviceindia.com/legal/article-3532-whether-post-facto-environmental-clearance-under-draft-eia-notification-2020-legally-permissible-.html 

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