NGT stays Environment Ministry order on prospective nod

The Southern Bench of National Green Tribunal here today stayed an office memorandum of Ministry of Environment and Forests relating to grant of prospective environmental clearance for projects that had attained substantial physical progress.
Passing interim orders on a petition challenging the November 16, 2010 memorandum, a bench comprising Justice M Chockalingam and expert member Prof R Nagendran stayed the operation of provisions relating to prospective clearances.
Other provisions related to dealing with violators would remain in force, the bench said and posted the matter to November 25.
In his petition, S P Muthuraman of Tirunelveli District contended that the Office Memorandum issued by the Director, Union Ministry of Environment and Forests, was ultra vires the Environmental Protection Act, 1986, the ministry's September 14 Environmental Impact Assessment Notification and Article 21 of the Constitution. He sought quashing of the memorandum.

The notification made it mandatory for all projects which require environmental clearance to obtain such clearance before any construction work, or preparation of land by the project management, the petitioner said.
The office memorandum, however, stated that "projects which have attained substantial physical progress relating to the construction at the site shall be considered by the Expert committee for the grant of prospective environmental clearance, though no environmental clearance was obtained prior to commencement of development as mandated by law."

The impugned office memorandum defeated the detailed procedure laid down in the notification for the grant of environmental clearance, it was argued.

"If this procedure is allowed to be followed any project proponent would complete his project by causing irreversible damage to the environment and will then seek post facto Environmental Clearance from Ministry of Environmental and Forests taking advantage of the impugned Office Memorandum," counsel for the petitioner submitted.
He contended that the memorandum was also against India's international obligations including the 1992 Rio Declaration besides being violative of the mandate of Article 51 of the Constitution.
Projects which had commenced without obtaining requisite environmental clearance must be imposed penalties under the relevant laws including Section 15 of Environment (Protection) Act, 1986. The grant of ex-post facto clearance was against the very purpose of environmental protection laws, he submitted.