GS Paper II & III

News Excerpt:

The Supreme Court has set aside a notification issued by the Environment Ministry three years ago that exempted extraction of ordinary earth for linear projects, such as road and railways construction, from obtaining Environmental Clearance (EC).

More on the news:

• The exemption, offered in March 2020, was challenged before the National Green Tribunal (NGT), which asked the Ministry to review it within three months in October 2020.
• The matter reached the Supreme Court, which recently struck down the “blanket” and “arbitrary” exemption.

The 2020 exemption:

• In 2006, the Environment Ministry issued a notification under the Environment (Protection) Act, 1986 on activities that would require prior EC.
• In 2016, a second notification was issued, exempting certain categories of projects from this requirement.
• The third notification of 2020 added “Extraction, sourcing, or borrowing of ordinary earth for linear projects such as roads, pipelines, etc.” to the list of exempted activities.

Arguments of the Government of India behind exemptions:

• The Government of India argued before the NGT that the exemption was necessary “for the general public's aid”. 
• It would help “the kumhars (potters), farmers, gram panchayats, vanjara, oads of Gujarat” and all non-mining activities identified by the states. 
• It also said that the grant of exemption was a policy matter that did not warrant judicial interference.
• The general purpose of the 2020 notification was to conform to the amendments made to the Mines and Minerals (Development and Regulation) Act, 1957, allowing new lessees to continue mining for two years with the statutory clearances and licences issued to their predecessors.

Grounds for the challenge:

• The exemption was challenged before the NGT on the grounds that allowing the indiscriminate extraction of the earth was arbitrary and violated Article 14 of the Constitution of India. 
• The petitioner argued that the exemption violated the requirement of prior EC in the leases as laid down by the top court in Deepak Kumar versus the State of Haryana (2012).
• It was submitted that the Ministry had circumvented the legal procedure of inviting public objections before issuing the 2020 notification by wrongly exercising its powers to abolish such requirements “under the garb of ‘public interest’ during the COVID-19 national lockdown to serve and further the interest of private miners and contractors.”
• In October 2020, the NGT held that the Ministry “should strike a balance and instead of being a blanket exemption, it needs to be hedged by appropriate safeguards such as the process of excavation and quantum”.

What the government did:

• The Centre sat on the NGT order until the appellant moved the SC. 
• Only after the SC concluded the hearing and reserved its judgement on August 10, 2023, the Ministry issued an Office Memorandum on August 21, laying down the enforcement mechanism for the exemption.
• On August 30, 2023, the Ministry notified that the exemption in question would be “subject to the compliance of standard operating procedures and environmental safeguards issued in this regard from time to time”.

What the SC said:

• First, the court held that “completely unguided and blanket exemption” was arbitrary and violative of Article 14 because the 2020 notification did not define ‘linear projects’ or specify the quantum and the extraction area.
• It is also not provided that only that quantity of ordinary earth, which is required to implement the linear projects, is exempted and the exemption granted without incorporating any safeguards defeats the purpose of the EP Act.
• Second, the court held that the Ministry offered no justification for concluding “that in the public interest, the requirement of public notice should be dispensed with” at any stage — neither in the notification itself nor in its submissions to the NGT and SC.
• Third, even the August 2023 notification, the court said, failed to elaborate on the concept of linear projects, specify the authority responsible for environmental safeguards or provisions for the same, or impose restrictions on the quantum of extraction.

Earlier exemptions under the Environment (Protection) Act, 1986: Similar exemptions under the EP Act have been subject to judicial scrutiny in the past.

• In 2018, the NGT quashed an exemption offered by the Ministry’s 2016 notification from the requirement of prior EC for building and construction activities having built-up areas of more than 20,000 sq m.
• Underlining that the EP Act mandates prior approval, the NGT in 2015 struck down two Office Memorandums issued by the Ministry in 2012 and 2013 for granting ex-post facto EC to projects under the 2006 notification.
• Another Ministry notification in 2021 sought to perpetuate an amnesty window opened for just six months in 2017 to clear projects under the “violation category” and issued ex-post facto approval to more than 100 projects until the SC stayed it in 2024.
• The Kerala High Court recently quashed a 2014 notification that exempted educational institutions and industrial sheds with built-up areas of more than 20,000 sq m from obtaining EC.