blanket exemption under EP Rules

Supreme Court: In appeals challenging judgment and order passed by the National Green Tribunal (‘NGT’) on 28-10-2020 and order dated 24-12-2020 by NGT rejecting review petition, the Division Bench of Abhay S. Oka and Sanjay Karol, JJ. found item 6 of the Environment (Protection) Rules, 1986 (‘EP Rules’) granting blanket exemption to the Central Government for obtaining environmental clearance.

Factual Matrix

A notification dated 14-09-2006 for Environmental Clearance (‘first EC notification’) issued by the Ministry of Environment and Forests exercising powers under Section 3(1) and 3(2)(v) of the Environment (Protection) Act, 1986 (‘EP Act’) read with Rule 5(3)(d) of the EP Rules.

The Court perused the first EC notification containing requirements of prior environmental clearance for specific projects by named Regulatory Authorities, being the Central Government and State Environment Impact Assessment Authority (‘SEIAA’). It stated that another EC notification issued on 15-01-2016 to partly modify the first EC notification to add Clause 7B and Appendix-IX providing for an exemption to specific categories of projects from the requirement of obtaining EC. The Court highlighted the item 6 of the said appendix providing for “Exemption of certain cases from requirement of Environmental Clearance – Extraction or sourcing or borrowing of ordinary earth for the linear projects such as roads, pipelines, etc.” It further brought in that the items 6 and 7 were substituted by further notification dated 30-08-2023 (‘amended impugned notification’) issued during pendency of instant appeals.

The said notification was challenged on several grounds before NGT, particularly for violation of directions issued by the Court Deepak Kumar v. State of Haryana, (2012) 4 SCC 629 wherein it was held that the exemption under item 6 should strike a balance. The Ministry of Environment, Forest and Climate Change (‘MoEF&CC’) was accordingly directed to revisit the said notification within 3 months, and the application for review was also dismissed vide order dated 24-12-2020.

Notice was issued on 13-12-2021 and judgment was reserved after which, the Union of India filed an affidavit of Dr Sujit Kumar Bajpayee, Joint Secretary, MoEF&CC on 12-09-2023 along with 2 documents — first being the Office Memorandum dated 21-08-2023 issued by MoEF&CC laying down the enforcement mechanism for items 6 and 7, second one being the amended impugned notification. The Court explained that due to amended impugned notification, parties were allowed to extend submissions on legality and validity of the same even after the verdict was reserved.

Court’s Analysis

The Court referred to various provisions of the EP Act which came into force on 19-11-1986, its objects and reasons, Central Government’s power to take measures, Rule 5 of EP Rules, etc. The Court discussed the scope of adjudication in the instant appeals and clarified that the specific challenge was to item 6. The Court expressed that perusal to impugned judgment reflected that the submissions made on behalf of the appellant were not recorded by NGT. The Court pointed out that “Even if we set aside or strike down item 7 regarding dredging/desilting in the impugned notification, it will continue to exist as item 6 in the second EC notification. The second EC notification is not under challenge” and restricted the instant matter to challenge against item 6 in the substituted Appendix-IX.

The Court explained that Rule 5(2) provides that while passing an order prohibiting or restricting the location of industries and carrying on processes and operations, the Central Government shall follow the procedure laid down in Rule 5, while Rule 5(3) requires it to publish a notice of its intention to do so in the official Gazette and in such other manner, so that any interested person entitled to file objections against the proposed prohibition or restriction, to be considered by the Central Government. The Court clarified that the said procedure was followed before publishing the first EC notification. It further highlighted that Rule 5(4) was an exception which could be invoked only on grounds of public interest.

The Court perused the notification dated 28-03-2020, the counter affidavit filed by MoEF&CC before NGT and expressed that the same does not deal with a particular ground does not specify or set out reasons for concluding that in the public interest, the requirement of publication of prior notice was needed to be dispensed with. The Court expressed that “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. Their participation cannot be prevented by casually exercising the power under sub-rule (4) of Rule 5.”

The Court explained that the documents reflecting satisfaction of competent authority regarding existence of public interest ought to be produced by the Ministry. The Court concluded that “the drastic decision to invoke sub-rule (4) of Rule 5 was made without any application of the mind” and held the decision-making process as vitiated. The Court further questioned the haste shown by Central Govt issuing impugned notification during nationwide lockdown and held the inclusion of item 6 to be illegal. The Court further explained that the very object of issuing the first EC notification incorporating the mandatory requirement of obtaining EC for projects was that the damage to the environment must be minimized while implementing projects, and further pressed upon the need for specific exception and regarded item 6 as arbitrary and violative of Article 14 of the Constitution of India.

Therefore, the Court struck down item 6 of the substituted Appendix-IX forming part of the impugned notification dated 28-03-2020 and item 6 of amended impugned notification dated 30-08-2023.

[Noble M. Paikada v. Union of India, 2024 SCC OnLine SC 369, decided on 21-03-2024]

Judgment authored by: Justice Abhay S. Oka

Know Thy Judge | Justice Abhay S. Oka – Harbinger of Social Change and Preserver of Administrative Accountability

Advocates who appeared in this case :

For Appellants: AOR Nishtha Kumar, Advocate Vanshdeep Dalmia, Advocate Shrom Sethi

For Respondents: AOR Gurmeet Singh Makker

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