CHENNAI: The Madras High Court has quashed the Office Memorandums (OMs) issued by the union environment ministry in 2021 allowing post-facto environmental clearance (EC) for projects. The judgment pronounced by a bench of Justices M Sundar and K Govindarajan Thilakavadi would mean that several projects that were started without obtaining the mandatory environmental clearance under Environment Impact Assessment (EIA) Notification, 2006, and the Coastal Regulation Zone (CRZ) Notification, 2011, cannot be operationalised.
“It is not a case of one or two instruments but of a slew of instruments making ex post facto the norm and prior clearance an exception, while Supreme Court has repeatedly held that ex post facto clearance can only be an exception. It (OMs) cannot be used for nullifying the EIA Notification which makes prior consent imperative,” the HC said. The judges likened the OMs to taking blood samples or doing tests on a patient after commencing the drug course for a disease.
The court, however, held that projects that were started without prior EC but where applications for post-facto clearance have already been filed with the environment ministry, the ministry can take a call on accepting or rejecting them based on the nature of the project. Based on past evidence, the projects can be operationalised after imposing a hefty penalty, the HC said.
TN can apply for ex post facto EC for 3 projects: Madras HC
TN’s ELCOT got impleaded and sought post-facto clearance for IT towers built in Sholinganallur and Vilankurichi.
There are several other projects that have been stalled for want of post-facto clearance. Considering the huge amount of public money that has been sunk into these projects, the judges said, “We make it clear that it is open to Tamil Nadu to apply for ex post facto EC for the three projects mentioned in the affidavit filed by the Managing Director of ELCOT. Such application for ex post facto EC shall be considered by the MoEF on its own merits and in accordance with legal position by construing as if impugned OMs are operating. If applications for ex post facto EC have already been made, the same shall be carried to its logical end untrammeled by this order,” the judgment said.
The impugned OMs were issued by the environment ministry in February 2021 and July 2021. The Madurai bench of the Madras HC stayed the July OM after it was challenged and many projects got stalled. The HC in its ruling said EIA notification and CRZ notification mandate ‘prior EC’ and impugned OMs proceed on the basis that project proponents commencing work without EC which is clearly a violation / breach and it provides for certain SoPs and grounds for ex post facto EC. Taking the example of an area which is prone to landslides, the court said, “If mining activity or any other activity prohibited in that area is commenced, land would have become susceptible to landslides. If ex post facto EC applications are taken up, even if the EC is not given, damage would happen.”