Mr. Nidhesh Gupta, Senior Advocate, Supreme Court speaks on CAN – NLU, Shimla Webinar on Environment & the Economy

CAN Foundation recently hosted a Webinar on ‘Environment & the Economy: Re-Imagining Key Concepts and Precepts’in collaboration with Himachal Pradesh National Law University, Shimla.

The panel included Mr. Justice Surya Kant, Judge, Supreme Court of India and Mr. Nidhesh Gupta, Senior Advocate, Supreme Court of India.

The event was organized in Media Partnership with Bar and Bench, who are well known for their stellar legal reporting.

Further, the SCC Online- EBC Group served as Knowledge Partners and lent their critical support to the event. The SCC-EBC Group is well known for being the industry leaders in legal research and have revolutionized the realm of legal research by creating reliable content.

Mr Nidhesh Gupta broadly covered the following topics:

  • Nidhesh Gupta provided international statistics about the number of tress that are being cut on a global level every year for the generation of paper which is for a variety of reasons such as writing paper, tissue paper, paper bags, etc and highlighted the extent of irreparable damage it is reeking upon the global environment every year. The statistics also mentioned to how much plastic is being generated and being disposed in the water bodies around the world particularly in the oceans and the extent of damage it is doing to the marine and aquatic ecosystem of the Earth. These were some interesting and intriguing statistics generally never heard before.
  • Gupta also threw extensive light on comparative analysis of EIA Notification by the MOEF, Central Government from time to time, vis EIA Notification 1994, EIA Notification 2006, EIA Notification 2014 & finally EIA Notification 2020. He provided a detailed insight into how slowly and gradually environmental compliances have been loosened out and relaxed with every notification, with the latest EIA Notification been the death nail for the environment in India by dispensing with essential ingredients involved in any fair and accountable EIA exercise like Public hearing, in depth assessment by hearing committee and ceilings fixed on particular activities for obtaining prior EIA from MOEF Environment for construction activities, mining activities, excavation and road highway construction activities.
  • He also discussed at length about ex post facto assessment and considerations for grant of EIA clearances. The inherent negatives behind introducing such a practice and disastrous and damaging effect of the same on the environment particular the industry was established illegally and had continued to operate for such a period of time, till the EIA application for environmental clearance came to be considered.
  • He highlighted how the Central Government had been blatantly playing around the orders of the Supreme Court from time to time fixing the boundaries beyond which the relaxations of environmental restrictions cannot transgress. He also pointed out how the central government playing hide and seek with the SC with the matter being subjudice with previous EIA notifications has come out with similar model, inherently illegal in nature.
  • Gupta extensively referred to the “Doctrine of Non-Regression in Environment” and painfully pointed out how EIA notification 2020 is a blatant step contrary to the aforesaid doctrine and ex-facie environmentally regressive in nature diluting the very purpose of enacting environmental restrictions with respect to a particular class category of activities.
  • He referred to various provisions of EIA Notifications to show how over a period of time these regressions have become more than visible to everybody associated with this field.

Mr. Gupta starts his Address saying that“the way I see Environment and Economy is in the principle of Sustainable Development which are the three Ps – the Planet (which should be protected), Profit (we have the greed and desire for it), People (who are in the middle of the previous two). There is a desire for development as a motive for which we have profits. There is a need to sustain, and so the planet is important. We need to sustain the planet.” He also highlighted verses from the Bhagavada Gita around this subject.

He further says that “unfortunately, for short term benefits, the long term damage to the environment is being caused on a regular basis. It is visible to us all the time, we see in our country, for example, that 14 out of the 15 most polluted cities in the world are in our country.”

Mr. Gupta gave an example and illustrated the above stated concept pretty well. He states that “about 8 million tonnes of plastic pollution enters the ocean every year and the cost of that (apart from what it does to marine life) is 2.5 trillion dollars per year.”He further remarks that“If it were not for the Supreme Court of India, our country would not be a livable place”.

Mr. Gupta observed that the committee setup by the Government unequivocally rejected a proposal to expand the limit from 20,000 to 50,000 square meters.  He further mentioned that how the Government was not satisfied with this, and also points out to a Second Committee which was set up under Dr. K Kasturirangan; but again, the same report was given.

He subsequently observed that in spite of these successive Committees, in 2016, a notification was issued on 9th of December, which completely diluted these protections including the requirement for  prior Environmental Impact Assessment. Mr. Gupta told how the matter was taken to National Green Tribunal and the notification was directed to be re-issued. Subsequently a notification was brought up in 2018, but it was stayed.

Mr. Gupta then observed that now suddenly, in spite of these judgments of the SC and what has happened in the Delhi HC, a shocking document called the EIA, 2020 was brought out and everything which is said, therein violates some principle or the other which the SC has laid down. Referring to the EIA, 2020, Mr. Gupta told the audience that it allows violations to take place, something which is completely in the teeth of precautionary principles. This notification defines violation. “Violation means cases where projects have either started the construction (wrong English first of all. Projects don’t start construction work, but the project proponents) work or installation or excavation, whichever is earlier, on site or expanded the production and / or project area beyond the limit specified in the prior-EC without obtaining prior-EC or prior-EP, as the case may be.”

He subsequently goes on to mention that the Supreme Court has highlighted the importance of public hearings, but this notification does away with those hearings for a large number of industries. “All projects relating to building construction beyond 20,000 require no hearing.”

Mr.  Gupta also mentioned about the CER Committee. He stated that “an environmentally friendly image is more beneficial than the amount of payment that has to be made.” 

He also remarked how we need to reduce the work of the Supreme Court by effectively handling appeals of the NGT orders at the High Court by making the latter a forum for entertaining the challenge to orders of NGT. Referring to the Constitutional Bench Judgment in the case of L Chandra Kumar, Mr. Gupta stated that what holds true for Administrative Tribunals equally holds good for specialized tribunals like the NGT and that the High courts should be provided as the first forum of remedy instead, of short circuiting the procedure and providing direct appeals to the Supreme Court.

He concluded by emphasizing the balance between development and environment and stated that “People have profits to look at one side and planet on the other and unfortunately the people always choose profits. Development should be achieved in a way that does not affect the environment adversely, but is sustainable.”

The meeting ended with a vote of thanks to Mr. Gupta and everybody involved in the Session.

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