Supreme Court rebukes Centre over haste in issuing notification during COVID to relax environment clearance

The Supreme Court recently struck down a clause of a COVID-era notification that did away with the need to secure prior environmental clearances for the extraction of soil for "linear projects" such as roads, pipelines, etc. [Noble M Paikada vs Union of India].A Bench of Justices Abhay S Oka and Sanjay Karol criticised the Central government for the "undue haste" with which the March 28, 2020 notification in question was issued without even inviting public objections. "The impugned notification was issued two days after the nationwide lockdown was imposed due to the COVID-19 pandemic. At that time, the work of linear projects, such as roads, pipelines, etc., had come to a grinding halt. So, there was no tearing hurry to modify the EC notifications ... We fail to understand the undue haste shown by the Central Government in issuing the impugned notification during the nationwide lockdown," the Court said. .It observed that the need for giving prior public notice and inviting objections from the public before introducing such a drastic change to the law cannot be casually dispensed with."There is no reason to dispense with this important requirement before publishing the impugned notification. Article 21 guarantees a right to live in a pollution-free environment. The citizens have a fundamental duty to protect and improve the environment. Therefore, the participation of the citizens is very important, and it is taken care of by allowing them to raise objections to the proposed notification. After all, citizens are major stakeholders in environmental matters," the Court said. .The observations came while scrapping a contentious clause in a March 28, 2020 notification, which was later modified to some extent in August 2023. The March 2020 notification in question altered the original 2006 notification which makes it necessary to obtain environmental clearances before undertaking any activity that could impact the environment. In focus before the Court was a clause of the amended notification that effectively dispensed with the need to obtain environmental clearances for the "extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc."The National Green Tribunal (NGT) had earlier refused to quash the 2020 notification, leading to an appeal before the Supreme Court..The Supreme Court concluded that the Environment Protection Rules had been violated in issuing such a notification.Among other aspects, the Court noted that there was no satisfaction recorded by the competent authority about the need for such a notification or the public interest necessitating such a notification. "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 said. .Environment Protection Act does not prohibit grant of ex post facto Environmental Clearance: Supreme Court .The top court added that any blanket exemption from obtaining environmental clearances without incorporating safeguards was totally arbitrary. The Court was prompted to make the observation after it found that the amended notification did not define what "linear projects" are. "Without the definition, it is difficult to imagine which projects will be termed linear projects. The term 'linear projects' is very vague. The process to be adopted for excavation has not been set out. Thus, item 6 is a case of completely unguided and blanket exemption, which is, per se, arbitrary and violative of Article 14 of the Constitution of India," the March 21 judgment said. .It proceeded to partly allow the appeal against the NGT's decision and struck down this clause in the March 2020 notification, as well as a corresponding clause in the August 2023 notification. .Senior Advocate Anitha Shenoy and advocates Nishtha Kumar, Vanshdeep Dalmia, Ayushma Awasthi, Namrata Sarah Caleb, Pariksha, and Shrom Sethi appeared for the appellant.Additional Solicitor General Aishwarya Bhati, Senior Advocate Swarupama Chaturvedi and advocates Ruchi Kohli, Shradha Deshmukh, Madhav Sinhal and Gurmeet Singh Makker appeared for the Central government..[Read Judgment]