Case Note & Summary
The case involves appeals against the judgment of the National Green Tribunal (NGT) dated 8 January 2016, which quashed a circular issued by the Union Ministry of Environment and Forests (MoEF) on 14 May 2002. The circular allowed industrial units that had commenced operations without obtaining prior environmental clearance (EC) under the Environmental Impact Assessment (EIA) Notification of 27 January 1994 to apply for and obtain ex post facto ECs. The NGT held that the concept of ex post facto environmental clearance was not sustainable under any provision of law and directed revocation of ECs granted to certain industrial units, closure of units operating without valid consents, and payment of compensation for environmental degradation. The affected industrial units, including Alembic Pharmaceuticals Ltd., United Phosphorus Ltd., Unique Chemicals, and the Union of India, appealed to the Supreme Court. The key facts are that the EIA Notification of 1994, issued under Section 3 of the Environment Protection Act, 1986, mandated prior EC for projects listed in Schedule I, including bulk drug and pharmaceutical manufacturing. Despite this, many units operated without ECs. The MoEF issued circulars extending deadlines for obtaining ECs, culminating in the 14 May 2002 circular allowing ex post facto clearances. The NGT quashed this circular. The Supreme Court considered whether ex post facto ECs could be validly granted. The appellant argued that the EIA Notification of 1994 did not use the word 'prior', unlike the 2006 notification, and that subsequent ECs for larger capacities subsumed earlier ones. The Court analyzed the EIA Notification of 1994, which clearly required that no project shall be undertaken unless EC is accorded by the Central Government. The Court held that the requirement of prior EC is implicit and mandatory. The circular of 14 May 2002, being an internal communication, could not override the statutory notification. The Court upheld the NGT's decision, dismissing the appeals. The decision reinforces the principle that environmental clearances must be obtained before commencing any project or expansion, and ex post facto clearances are impermissible under the law.
Headnote
A) Environmental Law - Ex Post Facto Environmental Clearance - Validity of Circular dated 14 May 2002 - Environment Protection Act, 1986, Section 3; EIA Notification 1994 - The circular allowing ex post facto environmental clearances was held contrary to law as the EIA Notification of 1994 mandates prior environmental clearance before undertaking any new project or expansion. The NGT's decision quashing the circular was upheld. (Paras 1-4, 12) B) Environmental Law - Prior Environmental Clearance - Requirement under EIA Notification 1994 - Environment Protection Act, 1986, Section 3; EIA Notification 1994 - The EIA Notification of 1994 requires that no project listed in Schedule I shall be undertaken without prior environmental clearance from the Central Government. The circular of 14 May 2002 allowing ex post facto clearance was held to be an internal communication and could not override the statutory notification. (Paras 6-7, 12) C) Environmental Law - Public Hearing - Mandatory Requirement - Environment Protection Act, 1986, Section 3; EIA Notification 1994 - The EIA Notification of 1994 as amended on 10 April 1997 made public hearing mandatory for thirty categories of activities requiring environmental clearance. The circular of 14 May 2002 could not dispense with this requirement. (Paras 8, 12)
Issue of Consideration
Whether the circular dated 14 May 2002 allowing ex post facto environmental clearances under the EIA Notification of 1994 is valid in law.
Final Decision
The Supreme Court dismissed the appeals, upholding the NGT judgment that quashed the circular dated 14 May 2002 and directed revocation of environmental clearances and closure of units operating without valid consents.
Law Points
- Ex post facto environmental clearance is not permissible under the EIA Notification of 1994
- Prior environmental clearance is mandatory for projects listed in Schedule I
- Circulars cannot override statutory notifications
- Environmental clearance must follow prescribed procedure including public hearing
