The Delhi High Court on Tuesday issued notice in a petition challenging an office memorandum issued by the Union Ministry of Environment, Forests and Climate Change (MOEF&CC) prescribing a procedure for granting retrospective environmental clearance to projects (Nishtha Shukla v. Union of India).
The Bench of Chief Justice DN Patel and Justice Jyoti Singh gave the Central government time till March 29 to file its response.
The petition, filed by student Nishtha Shukla through Advocates Chirag Jain and Shobhit Shukla, argued that the communication dated July 7, 2021 was passed by the Ministry without jurisdiction, in contravention of the law as established under Environment Impact Assessment (EIA) Notification 1994 and EIA Notification 2006. The petition said that the office memo is ultra vires the powers of the government under the Environment (Protection) Act, 1986 and also undermines the rights of people under Articles 21 and 48-A of the Constitution.
The petitioner has argued that the EIA notification of 1994 and 2006 provides for a mandatory Environmental Clearance (EC) to be issued prior to the initiation of any work on a project. These restrictions and prohibitions on the expansion or modernization of existing projects or activities based on their potential environmental impact form the basis of the environmental jurisprudence of the country, the plea stated.
“There is no provision in law that allows violators to obtain an ex post facto clearance i.e., the opportunity to obtain an Environmental Clearances for the projects which have already begun does not exist in the law. This understanding is for a good reason. It is this deterrence of closing down of operations and heavy cost to be paid for the destruction caused to the environment of a particular site, that is very crucial for the protection of environment from violators,” read the petition.
It was further pointed out that the office memorandum (OM) now provides a backdoor to violators by allowing projects to obtain clearance, effectively diluting the laws which are in existence to prevent environmental degradation.
It added that the OM vests ‘Central Sectoral Expert Appraisal Committees’ or state-level bodies with the discretion to conduct public hearing, which again is in direct contravention of the EIA notification 2006 which requires all projects except for the ones mentioned therein to have a mandatory public hearing process.
“It is further submitted that the Respondent did not have the authority to pass this Office Memorandum as it substantially changes the law as has been laid down under the EIA notification 2006, which is a subordinate legislation and cannot be overruled by any office memoranda. The impugned memorandum is a way to regularize the serious violations which would have a very detrimental effect on the Environmental jurisprudence of this country,” the petition further said.
Interestingly the communication had earlier been challenged before the Madurai bench of Madras High Court which had stayed it in July.