Environment Protection Act does not prohibit grant of ex post facto Environmental Clearance: Supreme Court

The Supreme Court on Friday set aside an order of the National Green Tribunal (NGT) directing closure of industries in Haryana for want of prior Environmental Clearance (EC) [Pahwa Plastics Pvt Ltd. & Anr. v Dastak NGO & Ors.]..The primary question of law considered by the Bench of Justice Indira Banerjee and JK Maheshwari in the appeal was whether an establishment employing about 8,000 workers, which has been set up pursuant to Consent to Establish (CTE) and Consent to Operate (CTO) from the concerned statutory authority and has applied for ex post-facto EC can be closed down pending issuance of EC, even though it may not cause pollution and/or may be found to comply with the required pollution norms.The top court found that the Environment (Protection) Act, 1986 does not prohibit ex post facto grant of EC. Further, it observed that the interest of citizens who depend on employment in the industries cannot be ignored. "The 1986 Act does not prohibit ex post facto Environmental Clearance. Grant of ex post facto EC in accordance with law, in strict compliance with Rules, Regulations, Notifications and/or applicable orders, in appropriate cases, where the projects are in compliance with, or can be made to comply with environment norms, is in our view not impermissible. The Court cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the project and others dependent on the project, if such projects comply with environmental norms," the Court said in its judgement. .The Environment Protect Act, 1986 does not prohibit ex post facto Environmental Clearance.Supreme Court .It opined that the NGT erred in law by taking a rigid view without regard to the consequences of the same."Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations. This Court is of the view that the NGT erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate," the Court said. .Therefore, it allowed the appeals and directed the government to take a decision on the appellants' application within a period of one month. Until such time, it was directed that the operation of the concerned units should be allowed to continue. It was also ordered that the electricity connection at the plants must be restored. However, If the application for EC is rejected on the ground of any contravention on the part of the appellants, it will be open to respondents to disconnect supply of electricity. The Court noted that even though the application for EC had progressed significantly, it had been contended by the counsel appearing for the Union of India that the appellants had not submitted its final application for EC after public hearing. "It is not clear what more was required of the appellants. Be that as it may, the Union of India shall, within 3 working days of receiving a copy of this judgement and order inform the appellants in writing if anything further is required to be done by the appellants The appellants shall within a week there after do the needful. The final decision on the application of the appellants for EC shall be taken within 3 weeks thereafter," the Court ordered in this regard. .The Court's judgement came on a batch of appeals under against an order passed by the Principal Bench of the National Green Tribunal, New Delhi, inter alia, holding that establishments such as the manufacturing units of the appellants, which did not have prior Environmental Clearance (EC) could not be allowed to operate.Senior Advocate Nidhesh Gupta, representing the appellants, had contended that the units which have operated on the basis of valid CTO should not be closed down.It was also pointed out that in the 2021 judgement in Electrosteel Steels Ltd. v Union of India, the Supreme Court had held that ex-post facto Environmental Clearance can be granted in appropriate cases to units who are already in operation, who posses statutory permissions, who are not otherwise violating pollution laws and except for the technical irregularity of not obtaining prior EC, they are otherwise fully compliant of environmental laws.The case of the appellants is fully covered by said judgment, it was contended. Further, it was submitted that the Ministry of Environment, Forest and Climate Change had issued draft notification in March 2020 which provides for a mechanism for dealing with such cases, where the units were in operation without prior EC..Finding merit in the arguments of the appellant, the apex court allowed the appeals. It also noted that the appellants appoint about 8,000 employees and have a huge annual turnover. "An establishment contributing to the economy of the country and providing livelihood ought not to be closed down only on the ground of the technical irregularity ofnot obtaining prior Environmental Clearance irrespective of whether or notthe unit actually causes pollution", the judgement stated..[Read Judgement]