national green tribunal: Retrospective environmental clearance can be granted in exceptional circumstances: SC

The Environment Protection Act does not prohibit ex post facto environmental clearance and it can be granted in exceptional circumstances taking into account all relevant environmental factors, the Supreme Court said on Thursday. A bench of Justices Indira Banerjee and J K Maheshwari said courts cannot be oblivious to the economy or the need to protect the livelihood of hundreds of employees and others employed in the units and dependent on the units for their survival.

“Ex post facto environmental clearance should ordinarily not be granted routinely, but in exceptional circumstances taking into account all relevant environmental factors.

“Where the adverse consequences of denial of ex post facto approval outweigh the consequences of regularisation of operations by the grant of ex post facto approval, ex post facto approval should be given in accordance with the law,” the bench said.

The top court’s observation came while upholding an order of the National Green Tribunal which dismissed a plea seeking direction for the closure of a Common Bio-Medical Waste Treatment Facility on the ground of alleged non-compliance with the provisions of the Environmental Impact Assessment Notification 2006.

The apex court said in a given case, the deviant industry may be penalised by the imposition of a heavy penalty on the principle of ‘polluter pays’ and the cost of restoration of the environment may be recovered from it.

“Ex post facto EC should not ordinarily be granted, and certainly not for the asking. At the same time, ex post facto clearances and/or approvals cannot be declined with pedantic rigidity, regardless of the consequences of stopping the operations.

“In our considered view, the NGT rightly found that when the Bio-Medical Waste Treatment facility of the Appellant was being operated with the requisite consent to operate, it could not be closed on the ground of want of prior Environmental Clearance,” the bench said.

The apex court said it cannot lose sight of the fact that the operation of a Bio-Medical Waste Treatment Facility is in the interest of prevention of environmental pollution.

“The closure of the facility only on the ground of want of prior Environmental Clearance would be against the public interest. There are no grounds to interfere with the judgment and order of the NGT in appeal as rightly argued by Karnataka State Pollution Control Board,” the bench said.

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