Abstract
This article explores how the Supreme Court’s decisions in Electrosteel Steels Ltd. v. Union of India, 2021 SCC OnLine SC 1247and Pahwa Plastic (P) Ltd. v. Dastak NGO, 2022 SCC OnLine SC 362 turns Indian environmental jurisprudence on its head by according approval to grant of ex-post facto environmental clearance. The concept of grant of ex-post facto environmental clearance is not only a violation of the precautionary principle which forms a pillar of Indian environmental jurisprudence, but also has downstream effects that can be severely detrimental to Indian ecology. The Hon’ble Court, by failing to consider the possible downstream effects of its decisions, has yet again prompted a re-think into the aversion of the Indian judicial system to employ statistical and economic analysis to understand the incentives created by its decisions. This trend needs to be arrested, lest it have further detrimental effects on India’s ecology.
Introduction
Indian environmental jurisprudence has repeatedly pushed conventional boundaries of protection offered by legislation. Courts have steadfastly taken an unforgiving approach towards acts of environmental degradation whilst ensuring that administrative action conforms to the doctrine of proportionality.
However, two recent judgements of the Hon’ble Supreme Court, namely, Electrosteel Steels Ltd. v. Union of Indiaand Pahwa Plastic (P) Ltd. v. Dastak NGOhave diluted that track record. The Court granted its imprimatur to ex-post facto Environmental Clearance (“EC”), thus paving the way for a new branch of environmental jurisprudence that may view environmentally detrimental actions more leniently.
Judgements in Electrosteel (supra) & Pahwa Plastics (supra)
The Court, in both cases, was dealing with industrial units that had failed to obtain EC as per the requirements of the EIA Notification. The Court was of the opinion that the units in question were providing livelihoods and contributing to the economy, and should not be shut down due to the ‘technical irregularity’ of not having obtained a prior EC. It held, relying on its previous judgement in Lafarge Umiam Mining Private Limited v. Union of India, that such a course of action would go against the settled principles of the doctrine of proportionality. The Court held that the concerned establishments should be given the opportunity to regularise their operations by obtaining requisite clearances and permissions. The Court went on to further hold that the Environment Protection Act, 1986 (“EPA”) does not prohibit the grant of ex-post facto EC, and some relaxations are not impermissible. Finally, it held that such industrial units, while being granted ex-post facto EC, should be penalised heavily on the basis of the ‘polluter pays’ principle. Consequently, the Hon’ble Apex Court gave its approval to the concept of grant of ex-post facto EC.
Violation of the Precautionary Principle
Indian environmental law has developed around two principles - the ‘polluter pays’ principle and the precautionary principle. The first holds the polluter liable to defray the costs of remedial measures to be undertaken as a consequence of the environmentally degrading activity carried out by it. The second mandates that where the extent of damage likely to be inflicted by the polluting activity is ascertainable, then necessary mitigative steps ought to be taken, and where the extent of such damage is not ascertainable, then the polluter must prove that ecological balance will be maintained in spite of the polluting activity. These two principles form the crux of the protective cover afforded by the right to a clean environment, which is an integral component of the fundamental right to life under Article 21.
Where does an ex-post facto EC fit into this matrix?
As far as the polluter pays principle is concerned, the same is applicable without any major hurdle even in the case of ex-post facto ECs. Once the violation is identified and the cost of remedial measures is determined, appropriate damages, compensation, and penalties can be imposed on the errant polluter.
An ex-ante EC captures the essence of the precautionary principle. However, ex-post facto EC renders the precautionary principle completely nugatory. The precautionary principle mandates that the prospective polluter will ascertain the extent of ecological damage that may be caused as a consequence of the polluting activity and thereafter take the necessary mitigative steps (in cases where the extent of ecological damage can be ascertained), or prove that ecological balance will be maintained (in cases where the extent of ecological damage cannot be ascertained). This activity has to be carried out by the prospective polluter prior to commencing the polluting activity. If it is done after, then the entire purpose is lost. The principle prescribes ‘precaution’ and not remedy, for that is the domain of the polluter pays principle. An ex-post facto EC is a retrospective approval of the polluting activities, and grant of an ex-post facto EC thus condones non-compliance with the precautionary principle.
Ex-post fact EC is different from imposing a fine
Not all cases of environmental law violation, including non-procurement of ex-ante EC, lead to shutting down of the polluting industry. The Courts apply the doctrine of proportionality to levy an appropriate penalty on the errant polluter, including monetary penalties, damages, and closure. While it may, at first blush, look similar to granting an ex-post facto EC, a deeper analysis points to a different conclusion.
The Court, by not ordering closure and imposing a fine, does not legally condone the actions of the polluter, and does not absolve the polluter from obtaining an EC for future operations/activities, thus ensuring compliance with the precautionary principle as far as its future operations/activities are concerned.
An ex-post facto EC does the exact opposite. It not only declares the past illegality as legal without considering the effects of the said activity on the ecology, but also absolves the polluter from complying with the precautionary principle as far as its future operations/activities are concerned. This effaces the precautionary principle from environmental law completely.
Downstream effects
Grant of ex-post facto EC by the Courts raises further issues. Firstly, it incentivises non-compliance with the law. Once a polluter is aware of the possibility of obtaining ex-post facto EC, it loses incentive to go through the process of obtaining one ex-ante. Secondly, the Courts being judicial bodies with no expertise in technical, environmental issues are ill-equipped to grant ex-post facto ECs. Under the EPA, committees comprising technical experts assess the environment impact assessment studies carried out by project proponents and thereafter decide whether or not the EC should be granted. In both Electrosteel (supra) and Pahwa Plastics (supra), the Hon’ble Supreme Court assumed that power upon itself and granted ex-post facto ECs. This is dangerous, as High Courts and the National Green Tribunal will use the these decisions as precedent to exercise the power to grant EC, which should be done by expert bodies having the necessary technical knowledge. Grant or rejection of EC is not a judicial function, but an executive function that relies upon the necessary input from technical experts. Courts, as judicial bodies, may not be well positioned to discharge that function.
Conclusions
The Hon’ble Supreme Court, by paving the way for grant of ex-post facto ECs has set a dangerous precedent. It is not only against previous decisions that have held ex-post facto ECs an anathema to environmental law, but is also violative of the precautionary principle that is so fundamentally rooted in Indian environmental law jurisprudence. The decisions in Electrosteel (supra) and Pahwa Plastics (supra) will have detrimental downstream effects, promoting violation of environmental law with impunity and also resulting in Courts assuming the power to grant ECs despite being ill-equipped to do so. This new trend of environmental law jurisprudence needs to be arrested before it has graver consequences on the country’s ecology.
Madhav Goel is an advocate practising in the Supreme Court of India, Delhi High Court & Tribunals. He is graduate of St. Stephen’s College, University of Delhi & Campus Law Centre, Faculty of Law, University of Delhi.