Photo: Reuters
Photo: Reuters

In a historic judgment, the National Green Tribunal (NGT), a special court setup to look into environment-related cases struck down the law allowing industries to obtain environmental clearances (ECS) even after proceeding with construction and operationalisation. This implies that the 300-odd industrial units — 23 of which are in Gujarat — stand to be shut down.

In the process of ensuring environmental justice, the scathing judgment called out the Ministry of Environment, Forest and Climate Change’s (MOEFCC) dirty secret: Favouring industries over the environment. A public interest litigation introduced by the Paryavaran Suraksha Samiti (PSS), a voluntary organisation, on 8 January before the NGT Western Zone bench Pune, pleaded that the clearances given to such industries were clear violations of environment protection.

The MOEFCC, charged with the protection of the environment in India, has been giving “polluting industries” (a category determined by the Ministry itself ) a leeway since the 1990s in the name of ‘ex-post facto clearances’. Over 64 industries such as distilleries, dyes, pesticides, paints and varnishes are labelled as polluting industries.

Under the Environment Impact Assessment Notification 1994 and then 2006, such industries are mandated to obtain environmental clearances before they proceed with construction. But offering concessions to industries, the Ministry has issued circulars time and again starting from 1998 to 2013 which extended timelines to obtain ECS.

The first circular extended the deadline to 1999, the second extended it to 2001, and the last one termed by the MOEFCC (then MOEF) as the “final opportunity” for “defaulting units” extended time upto 2003.

During this grace period, it received a total of 198 proposals for mining projects and petitions from 249 industrial units for availing ex-post facto environmental clearance. Of the 67 mining projects appraised by the Ministry, 36 were projects which were already completed.

“No one but the Environment Ministry is responsible for the deteriorating condition of environment in our country today,” says Rohit Prajapati, volunteer at the Gujarat-based PSS. The procedure adopted during 1998-2003, allowed numerous industries to get away easily with the pollution wrought by them. The defaulters on ECS not only include industries but thermal plants, coal plants and government as well as private institutions.

The argument is simple: the ex-post facto clearances are meaningless as they allow industries which have been functioning for years to apply for ECS. With the awarding of the clearances, the Ministry has been in effect brushing under the carpet the impact of pollution caused by industries over the years on nature and the local populace. This holds true for building projects as well.

“It is in fact government projects which violate this requirement the most,” says Nandikesh Sivalingam, campaigner of Greenpeace. For instance, the EC for projects like National Thermal Power Corporation’s 2,400 MW Kudgi plant in Bijapur, Karnataka, obtained EC by providing false information by passing off agricultural land as barren land.

“Many a time, the construction [which is in violation of the law] itself is used as an alibi to get environmental clearance,” says Sivalingam. He cites the Mahant coal block as an example where the stakeholders have pleaded for clearance on the ground that construction has been undertaken with the financial aid of state banks and hence scrapping of EC will mean a bad loan for the government institutions.

Instead of waiting for EC and then for forest clearances, industries start construction work parallely, defeating the very purpose of the system. “Mostly one arm of the MOEFCC does not know what the other arm is doing,” says Sivalingam referring to the issuance of clearances, in cases where institutions pursue both clearances (EC and FC) simultaneously.

This is not the first time the six-year-old green body has questioned the validity of such ex-post facto clearances. On 9 October 2013, the Chennai Bench of the NGT stayed one such office memorandum of the MOEFCC which said that projects which have “attained substantial physical progress relating to the construction at the site” shall be considered by the Expert committee for the granting of ECS.