NEW DELHI: Prior and post facto environment clearance for projects cannot co-exist as they are “mutually destructive and an oxymoron”, petitioners told the SC on Tuesday, challenging the validity of an office memorandum of the ministry of environment, forest and climate change allowing post facto clearances.
Environment impact assessement for a project “can only take place before commencement of activity and not after, and that the EC is an approval which is taken prior to commencement of activity and emanates from precautionary principle which is one of the cornerstones of environmental jurisprudence”, senior advocate Gopal Shankaranarayanan told the bench.In 2017, the government provided a six-month window for alleged violators to apply for post facto clearances.
This was stayed by the Madras HC. On July 7, 2021, the ministry issued standard operating procedures for processing EIA applications allowing ex post facto environment clearance through the back door, leading to the HC staying its operation. “When an independent question of one Bokaro project came up in the SC in December 2021, the SC said although the Madras HC stay was not challenged, it anyway applied only to Tamil Nadu,” Shankaranarayanan said.
“Using this observation, the ministry issued an OM on January 28, 2022, saying SC had restricted the HC’s interim order only to Tamil Nadu and started clearing a whole bunch of mining projects with ex-post facto clearance,” he claimed.
The NGO, while challenging the validity of the office memorandum, had sought a direction to the ministry and state environment impact assessment authorities “not to process and entertain any application for grant of ex post facto environment clearance on applications filed after April 13, 2018 (the window permitted under the March 14, 2017 notification as extended by the Madras HC).