INTRODUCTION

A 2-judge bench of the Supreme Court ("SC") in its judgment dated 22 September 2022, in D Swamy v. Karnataka State Pollution Control Board examined the legality of the 2017 notification issued under Section 3(1) and Section 3(2)(v) of the Environment Protection Act 1986 read with Rule 5(3)(d) of the Environment Protection Rules 1986. The 2017 notification provided for the grant of an ex post-facto environmental clearance for projects which had commenced / continued / completed operations without obtaining the requisite clearance. The SC has clarified in further detail the legality of ex post-facto environmental clearances considering the conflict between the High Court and an earlier precedent of the SC.

BACKGROUND

  • M/s GIPS Biotech ("Respondent No. 3") had applied for the consent to operate a Common Bio-Medical Waste Treatment Facility ("CBWTF"). The application was opposed by a few villagers of Mysore. However, the consent was granted by the Karnataka State Pollution Control Board ("KSPCB") for a period of 1 (one) year after it was re-submitted with the environmental clearance attached to the application.
  • M/s GIPS Biotech ("Appellant") then filed an appeal before the Karnataka State Environment Appellate Authority, which was withdrawn since it became infructuous due to the expiration of the consent.
  • The consent was subsequently renewed by the KSPCB which was further challenged by the Appellant at the National Green Tribunal ("NGT").
  • The NGT, Southern Zone, dismissed the appeal and rejected the prayer of the closure of the CBWTF on the ground of non-compliance of the provisions of the Environmental Impact Assessment Notification 2006.
  • The Appellant has challenged the order of the NGT before the SC under Section 22 of the National Green Tribunal Act 2010.

QUESTION FOR CONSIDERATION

  • Whether the consent to operate the CBWTF could be rejected on the ground of want of prior environmental clearance?

WHAT THE SUPREME COURT HELD

  • The SC affirmed the decision of the NGT and held that if the CBWTF was being operated with the requisite consent to operate provided by the Pollution Control Board, it could not be closed on the sole ground of want of a prior environmental clearance.
  • The SC held that the closure of the CBWTF would be against public interest since the operation of a Waste Treatment Facility is in itself in the interest of environmental protection. Moreover, the SC highlighted the importance of these facilities to the economy since they provide livelihood to hundreds of employees working in these units.
  • The SC further observed that ex-post facto environmental clearances should not be granted ordinarily. However, they ought not to be rejected pedantically and viewed with rigidity.
  • The SC further stated the conditions for the grant of ex-post facto environmental clearances which are: (i) in 'exceptional' circumstances wherein all relevant environmental factors have been considered; (ii) where the consequences of denial of the clearance are adverse and outweigh the consequences of approval; (iii) the concerned establishment must otherwise conform to all requisite pollution norms; (iv) the ex-post facto approval must be given accordance to and in conformity with the applicable statutory rules.
  • The SC stated that ex-post facto environmental clearances were not prohibited under the Environment Protection Act 1986. Thus, the grant of a prior environmental clearance was permissible if the projects were in compliance with appropriate statutory requirements or could be made to comply with the necessary environmental norms.
  • Moreover, the SC further clarified its position vis-à-vis the legality of ex-post facto environmental clearances in light of the conflicting judgments of Alembic Pharmaceuticals Ltd. v. Rohit Prajapati ("Alembic Pharmaceuticals"), another 2-judge bench of the SC and Fatima v. Union of India, a judgment by the Division Bench of the Madras High Court which had heavily criticised this practice.
  • In this case, the SC read down the ratio in Alembic Pharmaceuticals and solely emphasised on the relief granted by the SC. The SC indicated that irrespective of the critique of ex-post facto environmental clearances by the bench in the Alembic Pharmaceuticals case, the SC then had not directed the closure of the units but had rather explored measures to reduce the damage to the environment. An approach like that was suitable and necessary for the Indian legal landscape. Furthermore, the SC declared the judgment of the Division Bench of the Madras High Court in Fatima v. Union of India, that had held such environmental clearances to be illegal, as incorrect.
  • The SC even clarified that a deviant industry ought to be heavily penalised as per the polluter pays principle and the subsequent cost of the restoration of the environment must be recovered from the defaulting party.

CONCLUDING REMARKS

  • The SC circumscribed the specific grounds and conditions required before the grant of an ex-post facto clearance under the Environment Protection Act 1986 and aimed to streamline the process of providing a retrospective clearance.
  • The SC conclusively held ex-post facto environmental clearance to be legal and clarified the position considering the skewed landscape and conflicting judgments of the both the High Court and the Apex Court.
  • This judgment by the SC protects the interest of the economic industry while simultaneously paying adequate concern and attention to the environment. A balanced approach like this is the step in the right direction and ought to be lauded.

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