Pahwa Plastics- A Case on ex-post-facto environmental clearance

INTRODUCTION

Recently Supreme court in the case of Pahwa Plastics vs Dastak NGO, Supreme Court said companies can get environmental clearance even after setting up the industry. All of the statutes related to Environmental Clearance prohibits ex-post facto law. So, on what basis the judgement was decided and what are its effects on general public is what we will discuss further. We'll first look at what the environmental clearance under the Indian[PH1] law is, and why it is enforced.

Environmental Clearance is a procedure to get the nod to set up any project from the government for certain types of projects which includes thermal plants, mining, etc. Getting such clearance for certain projects is mandatory as it helps maintain and record the environmental pollution. Setting projects in wetlands, Coastal areas, national parks and sanctuaries, international boundary regions, archaeological sites, places of scientific and geological importance, and other environmentally sensitive locations require environmental clearance irrespective of the type of projects. Environmental clearance is a long procedure that includes the selection of a suitable location according to the guidelines. Then categorization of the project decides whether the project falls under the ambit of environmental clearance or not and categorizes them in categories A and B. If the project comes under category B, the state government will approve it for clearance. The state government divides such projects further into B1 and B2 categories for this reason. The B2 project does not need the completion of an EIA report. Then it needs Environmental Impact Assessment Report by the government. After that, it passes through different assent by the ministries and environmental appraisal, then it gets accepted or rejected. So it has an elaborate process that the projects have to go through to get clearance.

And the main purpose of this is to examine the planned project's impact on the environment and people and to strive to mitigate or eliminate the project's effect on the environment and people. Now we will see how the judgment undermines the purpose for which we need environmental clearance and gives leeway to industries to exploit the law.

Analysis of the Judgement

According to the both Environmental Clearance notification of 1994 and 2006, a project needs a prior clearance to establish an industry. The National Green Tribunal (NGT) ruled in June 2021 that industrial enterprises that make synthesized organic compounds – particularly, formaldehyde in Haryana – must seek environmental permission from the Central environment ministry before starting operations. Before receiving clearance, the facilities were also obliged to compile an environmental impact assessment study and hold a public hearing. Because none of the facilities in dispute had prior environmental approval, the NGT determined that they were functioning illegally. Following that, the industrial units went to the apex court to appeal the tribunal's verdict. The Supreme Court observed that an environmental clearance can be issued after the industry is operative. In addition, the court granted decision-makers complete discretion. As per Pahwa Plastics, while "ex post facto environmental approval should not be provided frequently," it can be granted in "extraordinary circumstances." Still, such "circumstances" have yet to be specified.[i]

The main concern here is the court's recent over-reliance on the proportionality concept. The Supreme Court used the notion of proportionality in Pahwa Plastics to determine that shutting an industrial unit was inadequate to the crime committed. That is, enforcement action should not be taken in excess of what is necessary to achieve the intended objective. In other words, "don't employ a cannon to shoot down a sparrow," advises the court. The concern is whether or not requiring prior environmental permission and demanding closure can be unreasonable. Obviously, since a law states that prior environmental clearance is required, it follows that every developer must obtain approval in advance, and any departure from this method must be considered a willful act of illegality.

Pahwa Plastics is also problematic since they approach environmental challenges through the prism of pollution. The Supreme Court has said several times that the basis for allowing the concerned companies some leniency is that they do not pollute and follow environmental rules. But environmental legislation is about more than pollution: according to where industry units are built, their cumulative impact, the planet's carrying capacity, and, most notably, the thoughts and interests of the individuals impacted.

This judgment is contradictory to the judgment of the same court in 2013 when it decided the Association of Environment Protection vs the State of Kerala. In this case, the Supreme Court stated that

“The object of this G.O. is to ensure that no project costing more than Rs.10 lakhs should be executed and implemented without a comprehensive evaluation by an expert body which can assess possible impact of the project on the environment and ecology of the area including water bodies, i.e., rivers, lakes etc. If the project had been referred to the Environmental Planning and Co-ordination Committee for review and assessment of environmental implications then it would have certainly examined the issue relating to desirability and feasibility of constructing a restaurant, the possible impact of such construction on the river bed and the nearby bridge as also its impact on the people of the area. By omitting to refer the project to the Committee, the District Tourism Promotion Council and the Department of Tourism conveniently avoided scrutiny of the project in the light of the parameters required to be kept in view for protection of environment of the area and the river. The subterfuge employed by the District Promotion Council and the Department of Tourism has certainly resulted in violation of the fundamental right to life guaranteed to the people of the area under Article 21 of the Constitution and we do not find any justification to condone violation of the mandate of order dated 13.1.1978.”[ii]

This judgment clearly stated that a project without first obtaining environmental clearance is a violation of Article 21 of the Indian Constitution, which guarantees the fundamental right to life.

CONCLUSION

This case sets a dicey precedent for environmental law and future cases. It overlooks the statutory provisions which is totally clear and non-ambiguous . Courts should decide the matters with keeping in mind the violations of environmental laws already happening and deciding such cases will give industries to exploit the law and pollute the environment for their benefit. The court should consider environmental law infractions to be more than "technical faults” but rather crimes against nature, as well as infringement of constitutionally recognized rights.

~Authored by Mohammad Ahmad

References

[i] Pahwa Plastics Pvt. Ltd. vs Dastak NGO, 2022 SCC OnLine SC 362 [ii] Association of Environment Protection vs the State of Kerala, [AIR 2013 SC 2500]

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