Answer

The principle of prior environmental clearance, central to India’s governance under the EIA Notification, 2006, ensures rigorous scrutiny of industrial projects to prevent environmental harm. Recent Supreme Court rulings declaring executive notifications bypassing this principle as “illegal” highlight the need to uphold this vital requirement for sustainable and accountable governance.

How the Principle of ‘Prior Environmental Clearance’ is Central to Environmental Governance in India

• Legal Backbone of Environmental Oversight: The EIA Notification, 2006 mandates prior environmental clearance for projects with significant environmental impacts under the Environment (Protection) Act, 1986.
• Prevention over Cure: Prior EC ensures that environmental risks are evaluated before damage is done, aligning with the Precautionary Principle and avoiding irreversible harm.
  Example: In the Lafarge Umiam Mining Case (2011), SC halted limestone mining in Meghalaya for operating without EC(Forest Clearance).
• Democratic Participation in Environmental Decision-Making: Public consultations during the EC process empower local communities, ensuring transparency and accountability.
  Example: Local resistance during public hearings for the POSCO steel project in Odisha (2010–2014) highlighted environmental and social concerns, leading to its eventual cancellation.
• Judicial Endorsement of Pre-emptive Regulation: Courts have consistently emphasized that clearance must precede project execution.
  Example: In Alembic Pharmaceuticals Ltd. v. Rohit Prajapati (2020), the SC ruled that post-facto environmental approvals violate the law, affirming that compliance must start at a project’s inception.

Implications of Bypassing the Principle Through Executive Notifications (with Reference to SC Rulings)

• Legal Illegitimacy and Bypass of Parliamentary Process: Executive notifications in 2021 allowed industries to regularise operations without prior EC, undermining the legislative framework of the EIA.
• Weakens Enforcement and Encourages Violations: Allowing units to pay fines instead of complying upfront with environmental norms sends a signal that violations can be monetarily ‘managed’.
  Example: Vedanta’s Sterlite copper plant in Tamil Nadu faced local protests and alleged violations, but operated until its 2018 closure due to reported environmental breaches
• Dilution of ‘Polluter Pays’ and ‘Precautionary’ Principles: Post-facto approvals convert environmental compliance into a procedural formality and reduce deterrence.
• Disempowerment of Regional Authorities: The notifications reflect the breakdown of regional environmental boards in detecting and preventing unauthorized projects.
• Judicial Compromise Dilutes Deterrent Effect: The SC allowed industries that regularised themselves under 2017 and 2021 schemes to remain unaffected, weakening the impact of the verdict.
  Example: Companies that availed the 2017 “one-time window” continued operating legally despite prior violations, showing the tension between legality and practicality in enforcement.
  

Way Forward

• Legislative Amendment and Explicit Ban on Post-Facto ECs: The Environment (Protection) Act should be amended to clearly prohibit post-facto approvals and codify judicial interpretations.
• Strengthening Monitoring and Use of Digital Tools: Use platforms like PARIVESH for real-time, transparent clearance tracking and integrate satellite data for enforcement.
  Example: The Forest Survey of India (FSI) uses satellite imagery to monitor forest cover loss; integrating this with EC tracking can help in early detection of unauthorized activities.
• Capacity Building for Pollution Control Boards: Improve human resources, digital tools, and inspection systems for SPCBs to act promptly.
  Example: A 2021 report by Centre for Policy Research (CPR) revealed that several SPCBs in India operate with staffing shortages of up to 40%, undermining enforcement capacity.
• Institutionalising Environmental Tribunals for Violations: Create a fast-track tribunal under the NGT system to deal specifically with EC violations and impose meaningful penalties.
  Example: NGT’s proactive role in cases like the Art of Living event on Yamuna floodplains (2016) showcases the effectiveness of specialized environmental adjudication.
• Community-Led Oversight and Whistleblower Protection: Strengthen local watchdog mechanisms and legally support citizens who flag EC violations.
  Example: Activists in Goa successfully brought attention to illegal coastal developments violating CRZ norms.

Moving forward, India must strengthen its environmental assessment frameworks, ensure stricter enforcement of clearance requirements, and prioritize sustainable development practices to balance growth with ecological integrity.