New Delhi: The Supreme Court has stayed two Union government orders of July 2021 and January 2022 granting ex-post facto clearance for projects across sectors without prior environmental approval mandated under the Environment Impact Assessment (EIA) notification of 2006.A division Bench of Justice B.R. Gavai and Justice Sandeep Mehta issued a notice on Wednesday, January 3, to the ministry of the environment and forests (MoEF) on the plea filed by NGO Vanashakti. “Issue notice returnable in four weeks. Until further orders there shall be a stay of the office memorandum dated January 20, 2022,” the Bench said, according to The Hindu. Vanashakti’s counsel, senior advocate Gopal Sankaranarayanan, told the court that EIA mandates prior approval before the start of any activity, and allowing ex post facto environmental clearance is “anathema to the Environment Protection Act”.Sankaranarayanan argued further that the EIA notification of 2006 mandates prior environment clearance for all projects and the problem began with an office memorandum of 2017 which provided a six-month window for alleged violators to apply for post facto clearance. To further his case, Sankaranarayanan cited previous Supreme Court orders which sought to balance the twin goals of sustainable development and environmental protection, calling it a “non-derogable” requirement under the law, according to Hindustan Times.‘Blatantly illegal’The MoEFCC’s January 2022 Office Memorandum, however, generalised post-facto environmental clearance to projects across the entire country.“We felt that it was completely illogical and illegal, blatantly illegal,” Stalin D., one of the directors of the Mumbai-based NGO Vanashakti which filed the petition in the Supreme Court, told The Wire. “How can a police commissioner or a DG issue a set of guidelines that tells criminals how to escape the law?”The 2017 notification provided a six-month window to apply for environmental clearance, so another one opening up projects for post-facto clearances was unnecessary, Stalin said. “Now forget windows, they’re opening everything, doors, windows, that lets everyone come in and go as they want,” Stalin told The Wire. “That cannot happen. This government has been systematically dismantling every safeguard that is in favour of the environment…as we have seen in the case of the Forest Conservation Act amendment as well…It is an uphill battle for all of us who are fighting this, not just me. But we can’t say we didn’t fight it, history shouldn’t judge us and say we didn’t do anything. Let the burden of guilt or inaction be on the people who were supposed to take action.”Vanashakti had already challenged the post facto environmental clearance proposed for the notification pertaining to the rules applying to the coastal regulation zone and have received a stay order for that, Stalin told The Wire. But the MoEFCC’s January 2022 Office Memorandum “was affecting the entire country” and “we couldn’t sit back and think that someone [else] will do it [contest the notification]”, Stalin said.“We realised that unless we put some kind of stumbling block everything will go out of the window…that there will be nothing left to save, it will be a futile battle all along,” he said.‘Definitely a win’That the Supreme Court has ordered a stay on the notifications based on their writ petition filed in October last year is a “definitely a win”, Stalin told The Wire. Moreover, the fact that this stay will hold across all sectors makes it a “very impactful” and “important” stay by the court, he said.“The case is yet to be heard, we don’t know what twists and turns are going to come up later on, what the government will say…[but] at least the judges saw that there was something seriously wrong with the way this was being done,” Stalin said. “Because if you look at the EIA notification, the word “prior clearance” has been used not once or twice, but 32 times. That’s how much it has been emphasised.” He added that the guiding principle in environmental jurisprudence is the precautionary principle (which states that if any product, action or policy has potential to cause harm to the public or the environment, authorities should err on the side of caution and take precautions to protect the environment or people than implement such a product, action or policy).“That [the precautionary principle], the fundamental foundation, cannot be thrown out,” Stalin said.‘Should be struck down completely’: Jairam RameshCommenting on the SC’s order to stay the MoEFCC’s office memoranda, former union environment minister and Congress member Jairam Ramesh said that the “absolutely atrocious Modi government decision” should be “struck down completely”, in a tweet on X (formerly Twitter).“The January 20, 2022 Office Memorandum of the Ministry of Environment, Forests and Climate Change, allowing for environmental approvals AFTER a project had commenced was a disaster that had been foretold,” he tweeted. “It is only a partial relief that the Supreme Court has now put that absolutely atrocious Modi government decision on hold. The decision should actually be struck down completely.”Note: An earlier version of this article had mentioned, on the basis of initial reports, that the stay was on mining projects alone. It is across all sectors, sources have told The Wire.
