In a possible setback for companies operating without prior environment clearance in violation of norms, the Supreme Court has stayed the Union environment ministry’s ex-post facto approval to such projects – some running for well over a decade.        

Ex-post facto approval is the assent given to projects that have already begun or have been completed, ostensibly as a leeway. Such approvals were issued through the environment ministry’s office memorandums on July 7, 2021 and January 28, 2022.

The entities that operated projects without prior environment clearance in violation of the Environment Impact Assessment notification, 2006, before getting the ex-post facto approval, included leading construction and mining players besides public sector firm NBCC.

The top court’s order came on Tuesday in the hearing of a writ petition filed by environmental NGO Vanshakti. However, while the NGO’s plea mentioned the 11 companies, advocate Vanshdeep Dalmia, representing the NGO said: “The list is illustrative, not exhaustive.”   

Of the 11 entities, eight were operational without a prior environment clearance, ostensibly at an unaccounted cost to the ecology and environment. The longest a company ran its operation without the EC approval was for 12 years, and two years was the shortest.      

The other three firms violated the EIA norms for “excess” use of the built-up area and overshooting production of minerals. The projects were located in Maharashtra, Andhra Pradesh, Telangana, Rajasthan, Haryana, Kerala and Odisha.

Notably, the breather for these companies was ratified by the expert appraisal committees or EACs of the Union Ministry of Environment, Forest and Climate Change, state bodies such as state environment impact assessment authorities, and state expert appraisal committees. 

How were the companies given backdoor breathers?

In 2017, the environment ministry issued a notification to give ex-post facto environment clearance approvals to violators – a “one-time window” for six months. 

In July 2021, it released a standard operating procedure through an office memorandum to implement the notification again. This came after the National Green Tribunal directed the “concerned authorities” to formulate SOP for EC in cases of violations.  

The petitioner argued that the notification expired on April 13, 2018, but the state and central appraisal committees treated the 2021 SOP as a “substantive procedure to process fresh applications for grant of ex-post facto environment clearance”.

This was amid the pandemic, when the environment ministry brought a slew of amendments to the environmental laws.

Between March 2020 and March 2022, the Union environment ministry issued 123 “instruments,” as per a study by Delhi-based think tank Vidhi - Centre for Legal Policy. These instruments were gazette notifications, office memorandums, circulars, letters and orders. Every third instrument, and a total of 39, was found to be amendments made to various rules and notifications under the EP Act and the EIA notification. 

Three-fourths of the 39 amendments were relaxations and exemptions from the pre-existing laws, as per the study titled ‘(De)Regulating the Environment — An Analysis of Regulatory Changes Introduced during COVID-19 in India’.

A week after the 2021 SOP, the Madras High Court stayed it. The court called it “ultra-virus,” translating to beyond the powers of the Environment Protection Act, 1986 and the EIA notification, 2006. In December 2021, the Supreme Court limited the HC order to its jurisdiction. 

The Supreme Court order read: “The interim stay passed by the Madras High Court can have no application to operating of the Standard Operating Procedure to projects in territories beyond the territorial jurisdiction of Madras High Court.”

A month later, in January 2022,  the environment ministry, quoting the SC order, issued an office memorandum. Calling it “self-explanatory”, the ministry mentioned the stay imposed by the HC and the restriction of its order by the SC. This, according to the petitioner, was also used by state and central bodies to admit fresh applications of violators.  

The petitioner further claimed that these new changes flouted section 3 of the EP Act. “It’s submitted that as per the purport of Section 3 (of the EP Act) only positive amendments can be made and no retrograde/regressive steps ought to take place and thus the impugned (under challenge) OM dated 07.07.2021 would have been ultra-vires the provisions of Section 3 itself,” read the petition.

Section 3 reads: “Subject to the provisions of this Act, the Central Government, shall have the power to take all such measures as it deems necessary or expedient for the purpose of protecting and improving the quality of the environment and preventing controlling and abating environmental pollution.”

Senior advocate Gopal Sankarnarayan, who argued on behalf of the NGO, said the Supreme Court had sought a reply from the environment ministry. “The case will be heard in three-four weeks,” he told Newslaundry.

Who are the violators?

Sankarnarayan said if a project was operating without environment clearance, it had to be dismantled in accordance with the 2006 EIA notification. But the 2021 SOP prevented it.

The 11 entities that violated the EIA notification before getting the ex-post facto approval included a public sector unit, a leading iron and steel manufacturer, and a real estate developer.

An iron ore project by iron and steel manufacturing major Llyods Metals and Energy Limited was given an ex-post facto approval after operating a mine in Maharashtra’s Naxal-affected Gadchiroli district without the environment clearance for 12 years. 

The company received the approval by the EAC of the environment ministry in its meeting on December 27-28, 2022. It levied Rs 26.64 crore in “damage assessment” and Rs 5.48 crore “in penalty provisions” in accordance with the 2021 office memorandum. 

The 2021 SOP mandated a penalty of 0.25 percent of the total turnover for violation period in addition to 1 percent of the total project cost.

Notably, Union Home Minister Amit Shah was scheduled to inaugurate a plant of Lloyds in the district on December 9 last year.

In Gurgaon, Unitech Limited built a commercial office complex, Signature Tower-III, in excess of built-up area permitted in its environment clearance granted in 2012. 

As per the environment norms, the company was allowed to carry out construction up to 86,802 square meters, but it overshot by 18,698 square meters. The environment impact assessment authority of Haryana imposed a penalty of Rs 1.24 crore and Rs 1.99 crore in environment damage assessment on the company.

NBCC (India) Ltd, a central government navratna undertaking, was one of the beneficiaries of the 2022 notification. It was building a residential project in Kerala’s Ernakulam district spread over 31,307 square meters.

In Telangana, Ganesh Metal Industries and GI Rank Industries continued open cast mining in Sangareddy district for seven and 10 years without the environment clearance.

Real estate firm JAS Construction Private Limited expanded a residential complex in Odisha’s Sambalpur district in 2018 without the environment clearance.

In Andhra Pradesh, Sri Krishna Mohan Stone continued open cast mining for eight years in Vizianagaram district without the environment certificate. It was given the EC by Andhra Pradesh EIA authority in January 2023 under the environment ministry’s relaxation rules.

In the same district, another company, Jetty Satyanarayana and others, carried out mining in an area spread across 4.7 hectares for eight years without approval. A mining lease holder, B Asha, also mined another area for seven years without the EC.

Vinay Alloys in Maharashtra’s Nagpur began constructing an alloy plant in 2021 without approval. In its meeting in May 2023, the EAC granted post facto certificate by imposing a penalty of Rs 4 lakh.

For mining of minerals, Modi Mineral Grinding Private Limited was granted reprieve by the Rajasthan State Level Expert Appraisal Committee for mining quartz in excess of the lease area. The SEAC imposed a penalty of Rs 5.24 lakh penalty under the 2021 SOP.

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