The Supreme Court said in a case that there is no need for “pedantic rigidity” while expecting manufacturing units to get ‘environmental clearance’ before starting their operations.

In Pahwa Plastics Vs Dastak NGO, the question was whether an establishment employing about 8,000 workers, which had been set up after getting the ‘consent to establish’ (CTE) and ‘consent to operate’ (CTO), from the statutory authority concerned, and has applied for ex-post-facto Environmental Clearance, should be closed down – even though it may not be causing pollution. The National Green Tribunal, New Delhi, had ordered on June 3, 2021, that establishments such as the manufacturing units of Pahwa Plastics, which did not have prior EC, could not be allowed to operate.

The Supreme Court said that it could not “be oblivious to the economy or the need to protect the livelihood of hundreds of employees.” It stressed that “ex-post-facto EC should not ordinarily be granted and certainly not for the asking.” However, equally, ex post facto clearances “cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations,” the Supreme Court said, using the same words it used in an earlier case, Electrosteel Steels Vs Union of India. As such, the NGT had erred in law in directing that the units cannot be allowed to function till compliance of the statutory mandate, it said.

The apex court stressed that The Environment (Protection) Act, 1986, does not prohibit ex post facto EC. “Some relaxations, and even grant of ex post facto EC, in accordance with law, in strict compliance with Rules, Regulations, Notification and/or other applicable orders, is not impermissible,” it said, “The Appellants (Pahwa Plastics) will be allowed to operate the units. Electricity, if disconnected, shall be restored subject to payment of charges, if any. If the application for EC is rejected on the ground of any contravention on the part of the Appellants, it will be open to the Respondents to disconnect the supply of electricity,” the judgment said.

The precedent cited was a case of Alembic Pharmaceuticals, in which the apex court had said that it was generally against ex post facto EC.

It had then said: “An EC can be issued only after various stages of the decision–making process have been completed. Requirements such as conducting a public hearing, screening, scoping and appraisal are components of the decision-making process which ensure that the likely impacts of the industrial activity or the expansion of an existing industrial activity are considered in the decision-making calculus. Allowing for an ex post facto clearance would essentially condone the operation of industrial activities without the grant of an EC. In the absence of an EC, there would be no conditions that would safeguard the environment. Moreover, if the EC was to be ultimately refused, irreparable harm would have been caused to the environment. In either view of the matter, environment law cannot countenance the notion of an ex post facto clearance. This would be contrary to both the precautionary principle as well as the need for sustainable development. Even though this Court deprecated ex post facto clearances, in Alembic Pharmaceuticals Ltd. (supra), this Court did not direct closure of the units concerned but explored measures to control the damage caused by the industrial units.”