'Ex Post Facto' Environmental Clearance Unsustainable in Law - SC (Read Judgment)

4/3/2020 'Ex Post Facto' Environmental Clearance Unsustainable In Law : SC [Read Judgment]
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ENVIRONMENT
'Ex Post Facto' Environmental Clearance

Unsustainable In Law : SC [Read Judgment]
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The Court however set aside the NGT direction for closure of the
industries, and directed them to pay Rs 10 crores compensation each.
The Supreme Court has reiterated that the concept of 'ex post facto' Environmental
Clearance (EC) is against the fundamental principles of environmental jurisprudence.
"...environment law cannot countenance the notion of an ex post facto clearance. This
would be contrary to both the precautionary principle as well as the need for sustainable
development", observed a bench comprising Justices D Y Chandrachud and Ajay
Rastogi.
Also Read - Environmental Compensation Can't Be Imposed Without Giving Notice To
Violator: Delhi HC Asks CPCB Reconsider Order Against PWD [Read Order]
On this basis, the SC upheld the 2016 order of National Green Tribunal setting aside a
circular issued by Ministry of Environment and Forests on 14 May 2002, which envisaged
the grant of post facto ECs.
The SC agreed with the NGT's nding that the circular was "unsustainable in law". The
circular allowed industries which had commenced operations without obtaining EC in
terms of the Environment Impact Assessment noti cation of 1994 to obtain the same by
an extended date in 2003.
Also Read - NGT Directs State/UT's To Have One District Environment Plan Ready In
Three Months [Read Order]
"When the EIA noti cation of 1994 mandates a prior EC, it proscribes a post activity
approval or an ex post facto permission. What is sought to be achieved by the
administrative circular dated 14 May 2002 is contrary to the statutory noti cation dated
27 January 1994", held the bench.
In this regard, the bench followed the decision of the SC in Common Cause vs Union of
India, which held that ECs cannot be granted post-facto.
The Court explained the adverse effects of a retrospective EC as follows :
"The reason why a retrospective EC or an ex post facto clearance is alien to

environmental jurisprudence is that before the issuance of an EC, the statutory
noti cation warrants a careful application of mind, besides a study into the likely
consequences of a proposed activity on the environment. An EC can be issued only after
various stages of the decision-making process have been completed.
Requirements such as conducting a public hearing, screening, scoping and appraisal are
components of the decision-making process which ensure that the likely impacts of the
industrial activity or the expansion of an existing industrial activity are considered in the
decision-making calculus. Allowing for an ex post facto clearance would essentially
condone the operation of industrial activities without the grant of an EC. In the absence
of an EC, there would be no conditions that would safeguard the environment. Moreover,
if the EC was to be ultimately refused, irreparable harm would have been caused to the
environment".
The Court however set aside the order of the NGT which directed the closure of the
industries for not taking prior EC in terms of 1994 EIA noti cation. The case pertained to
three industries - Alembic Pharmaceuticals, Unique Chemicals, Darshak Pvt Ltd and
Nirayu Pvt Ltd -which were engaged in the manufacture of pharmaceuticals and bulk
drugs at the industrial area of Ankleshwar in the State of Gujarat.
The bench said the direction for closure was disproportionate, and allowed the
resumption of operations by the industries on condition of paying compensation of

Rupees Ten Crores each.
"this Court has taken note of the fact that though the three industries operated without
an EC for several years after the EIA noti cation of 1994, each of them had subsequently
received ECs including amended ECs for expansion of existing capacities.
In addition, all the three units have made infrastructural investments and employed
signi cant numbers of workers in their industrial units.
In this backdrop, this Court must take a balanced approach which holds the industries to
account for having operated without environmental clearances in the past without
ordering a closure of operations. The directions of the NGT for the revocation of the ECs
and for closure of the units do not accord with the principle of proportionality".
Invoking the powers under Article 142 of the Constitution of India, the Court directed the
defaulting industries to pay compensation.
The amount should be deposited with GPCB and it shall be duly utilised for restoration
and remedial measures to improve the quality of the environment in the industrial area in
which the industries operate, the Court said.
Case Details
Title : Alembic Pharmaceuticals Ltd vs Rohit Prajapati and others
Case No : Civil Appeal No. 1526/2016
Bench : JJ D Y Chandrachud, Ajay Rastogi
Appearances : Senior Advocates Kapil Sibal, C U Singh and Dr AM Singhvi for appellants; ANS Nadkar
Click here to download the judgment
Read Judgment
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4/3/2020 'Ex Post Facto' Environmental Clearance Unsustainable In Law : SC [Read Judgment]

TOP STORIES NEWS UPDATES COLUMNS INTERVIEWS FOREIGN/INTERNATIONAL

ENVIRONMENT RTI KNOW THE LAW VIDEOS 

'Ex Post Facto' Environmental Clearance

Clearance (EC) is against the fundamental principles of environmental jurisprudence.

Also Read - Environmental Compensation Can't Be Imposed Without Giving Notice To

the grant of post facto ECs.

circular allowed industries which had commenced operations without obtaining EC in

an extended date in 2003.

Three Months [Read Order]

India, which held that ECs cannot be granted post-facto.

The Court explained the adverse effects of a retrospective EC as follows :

"The reason why a retrospective EC or an ex post facto clearance is alien to

drugs at the industrial area of Ankleshwar in the State of Gujarat.

resumption of operations by the industries on condition of paying compensation of

Rupees Ten Crores each.

defaulting industries to pay compensation.

which the industries operate, the Court said.

Click here to download the judgment

TAGS #ENVIRONMENT #ENVIRONMENTAL CLEARANCE #ENVIRONMENT PROTECTION ACT

#EIA NOTIFICATION 2006 #JUSTICE DY CHANDRACHUD #JUSTICE AJAY RASTOGI

#COMMON CAUSE ALEMBIC PHARMACEUTICALS LTD VS ROHIT PRAJAPATI AND OTHERS

#NATIONAL GREEN TRIBUNAL #NGT

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1 'Ex Post Facto' Environmental Clearance Unsustainable In Law : SC [Read

2 Environmental Compensation Can't Be Imposed Without Giving Notice To Violator:

1. Chairperson-cum-Member (Legal) Vacancy At Consumer Grievance Redressal Forum,

2. Assistant Professor Vacancy At Mangalayatan University, Aligarh

3. Consultant Vacancy At Ministry Of External Affairs Headquarters

4. Assistant Professor Vacancy At Central University Of Jharkhand

5. Legal O cer Vacancy At HPCL Rajasthan Re nery Limited

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