This despite the fact that they have failed to obtain ECS “prior to commencement of development as mandated by law.” Two years later on 7 July 2015, the Principal Bench of NGT headed by Swatanter Kumar squashed two such office memorandums (OMS) issued by MOEFCC in 2012 and 2013 that granted projects ex- post facto clearance on the condition that they suspend activity on project, submit written commitments of not repeating the violations and subject themselves to prosecution by the regulator.
The bench outrightly declared the OMS as “ineffective” and prevented the MOEFCC from implementing these in any manner.
Hearing Prajapati’s PIL on 8 January, the NGT also squashed the Ministry’s 2002 circular stating that it does not show which provisions of the Environment (Protection) Act, 1986, allow for ‘ex-post facto clearance’. In its judgment, the Tribunal declared the circular to be “void, ab-initio”, “a farce, stage-managed, wrong and impermissible under the Law” and an order which “suffered from illegality, which is incurable in any manner.” In doing so, the NGT has set the wheels in motion for a massive undoing of the wrongs of the environment ministry which has been lenient to environmental violations by industries and project proponents.
What remains to be seen is the ministry’s reaction to this judgment. “I have already filed a caveat in the Supreme Court anticipating a stay from the Ministry,” says Prajapati.
Various instances like the visit of a delegation of MOEFCC , headed by Joint Secretary Manoj Kumar Singh to the critically polluted zone in Gujarat of Ankleshwar, Vatva and Vapi is worrying activists. The industries in these zones stand to be affected from the NGT’s order scrapping their EC. According to a source, these industrialists have been lobbying for the cancellation of ‘critically polluting industries’ tag for a long time.
Additionally, the fact that the hurriedly formulated Environment Amendment Bill 2015 by the MOEFCC which will soon be introduced in the Parliament for approval, proposes serious dilutions to the power of the NGT.
For instance, it puts the onus on the complainant to provide evidence for his claims, thus restraining his appeal for justice. “The passing of the newly amended environment Bill will mean that people’s access to justice especially through the NGT is curtailed,” says Bhargavi S Rao of the Environment Support Group.
It is ironical that possible opposition to a pro-environment judgment by the NGT can come from the ministry of environment, the very body entrusted with the protection of the nation’s natural resources.